'Fundamental constitutional truths' : the constitutional jurisprudence of Justice Deane, 1982-1995

Abstract

Justice Deane was a member of the High Court from 1982 until 1995. This thesis examines Deane's constitutional jurisprudence during this period and argues that his decisions were permeated by themes and principles forming a coherent vision of the Constitution and its interpretation. Although voiced most fully in Theophanous v Herald and Weekly Times (1994) 182 CLR 104, Deane's constitutional vision was evident from his earliest High Court decisions. Central to Deane's constitutional philosophy was his concept of 'the people'. Deane regarded 'the people' as the source of legal authority of the Constitution, and the Constitution as ultimately concerned with their governance and protection. Although Deane recognised the importance of representative democracy as a fundamental commitment of the Constitution, it was the Court, and judicial process, that for Deane was the most important guarantee of individual liberty. Consistent with this understanding of the role of the Court, Deane's jurisprudence favoured rights-sensitive interpretations of the Constitution's text, including the development of a number of innovative, and controversial, implied constitutional rights. These features of Deane's constitutional jurisprudence, matched with his reliance on broad and flexible interpretive principles in constitutional interpretation, challenged orthodox assumptions of the legitimate limits on judicial review in the Australian constitutional system. In the years since Deane's departure from the Court the concept of 'the people' as the source of the Constitution's authority has gained wide acceptance. Few have also accepted Deane's bold vision of the Court's duty to protect the fundamental rights of 'the people' from legislative interference. Until this aspect of Deane's constitutional vision is adopted, some of his more controversial interpretations of the Constitution are unlikely to gain the acceptance of a majority of the Court. However, much of Deane's jurisprudence displays his reliance on his distinctive concept of 'the people' to support the application of both established principles of constitutional interpretation and a number of innovative interpretive principles to derive moderate conclusions on the meaning and effect of the Constitution. For this reason, Deane's jurisprudence contains many fresh and compelling answers to questions regarding the meaning of the Constitution in contemporary Australia.