The proper approach to constitutional interpretation, and the role of the High Court in that interpretation, have recently begun to be widely debated, not just in legal circles but also in the wider community. This debate has been stimulated in part by significant decisions like the Franklin Dam case, and proposals to give judges jurisdiction to interpret a Bill of Rights. In the United States a never ending debate continues on the question of judicial review of the Constitution without any consensus being apparent on what is the proper role of the Supreme Court. Nor should one expect any similar debate in Australia necessarily to lead to agreement on what is a proper approach to constitutional interpretation.

As part of the debate, a study of the approach taken by individual judges can, it is suggested, help to illuminate recurring issues, illustrate an approach that has in fact been followed and provide a contrast with the approach of other present or past judges.

Amongst the nations of the South Pacific only Australia and New Zealand have no constitutionally entrenched Bills of Rights. New Zealand has no written Constitution at all, whilst in the Australian Constitution there are a number of provisions which have the potential to guarantee some civil and political rights.

The founding fathers of the Australian Constitution were pragmatic people. Almost all of them were parliamentarians and many of them either were, or had been, Premiers or senior Ministers in the governments of the various Australian colonies. They were not leisured gentlemen who took time to consider philosophy, let alone write any of their own. They were not concerned about the rights of humankind, nor did they see their role as one of creating an Australian federal parliament and a government that was required to guarantee, uphold and preserve the rights of the people. On the contrary their aim was to achieve some hard, practical, political goals.

Pirrie v McFarlane remains an enigmatic case. Decided a few years after the landmark decision of Engineers it reflected an application of the reciprocal nature of the principle applied in that case. The thrust of the decision in Engineers was that the Commonwealth Parliament had power under s 51(xxxv) to make laws binding on the States. In the course of judgment the majority judges had also observed as follows:

Coming so soon after Engineers, the decision in Pirrie v McFarlane is clearly consistent with this observation of the majority judges. However, given the subsequent developments in cases such as Cigamatic and Bogle, the authority of Pirrie v McFarlane has been questioned.