One more contribution to the long debate over constitutional interpretation calls for some justification. This Article tackles a specific problem of interpretation in Australian constitutional law, although it is a problem that will arise in regard to the interpretation of any document which must be read and applied over a long period of time. The Article seeks to bring the concepts of contemporary philosophy of language to bear upon the problem with the aim of delineating what we mean by "meaning." The problem chosen to explore the issues just described is the long recognised difficulty in applying terms in the Constitution to entities or activities that did not exist at the time the Constitution was drafted or passed into law. Difficulties of this sort for constitutional interpretation may be arising more often as the time when the document was written recedes and the volume of social change since its inception increases.
It will be argued that a solution to this problem of constitutional interpretation involves abandoning attempts to ascertain the meaning of the document as the sole means of using the Constitution. It will be further argued that a practice of constitutional interpretation that is restricted to ascertaining the meaning of the Constitution will be practicably unworkable. Finally, it will be argued that a practice of interpretation not based upon ascertaining meaning requires a justification quite different from one restricted solely to meaning. What is presently lacking is a justification of such practice. This Article will not seek to offer such a justification, but it will suggest some conditions that any such justification would need to satisfy.
A classic example of the interpretational problem described above, although one that proved relatively easy of solution, was posed by The King v. Brislan; ex parte Williams, (1) in which it was held that the words in section 51(v) of the Constitution (2) conferring power upon the Commonwealth to make laws with respect to "postal, telegraphic, telephonic and other like services" extended to radio broadcasting, even though such technology did not exist in the 1890s. The words "other like services" at the end of the provision, and the knowledge that already existed in the 1890s regarding the electro-magnetic spectrum made the finding rationally supportable. (3)
Other issues prove less tractable. Laws of the Commonwealth to implement treaties protecting the environment have been held to be laws with respect to external affairs, (4) a result that might have surprised at least some of the constitutional founders. By contrast, the High Court confirmed in Eastman v. The Queen (5) that the meaning of the word "appeal" in section 73 was to be construed in accordance with historical usage, which would not have carried the implication that fresh evidence could be admitted. (6)
Many more examples can be recited of instances in which social change has placed pressure upon the way in which one interprets provisions of the Constitution. Some of these have been before the High Court; others no doubt will be litigated in years to come. At Federation the word "marriage" undoubtedly meant a relationship between a man and a woman. The time fast approaches when the term may, at least amongst a substantial portion of the population, be used to describe certain relationships between people of the same sex. An issue will arise as to whether Commonwealth powers under section 51 (xxi) of the Constitution in regard to marriage, extend to making laws for such same-sex relationships.
Similar issues have arisen concerning challenges to the Commonwealth's power to legislate in regard to computing technology and rights in regard to genes and plant varieties. Scholars suggest that these rights are sui generis. (7) These arguments amount to the assertion that computing technology or genetic discoveries are not in truth copyright subjects or patentable inventions as those concepts were originally understood in section 51 (xviii) of the Constitution. …