The purpose of this paper is to examine the significance of the Franklin Dam case for the use of implications in the interpretation of the Commonwealth Constitution.

Implications of various kinds, derived from various sources, are regularly made in the interpretation of the Constitution. The necessity for them has been frequently acknowledged. In West's case, for example, Dixon J said:

Since the Engineers’ Case a notion seems to have gained currency that in interpreting the Constitution no implications can be made. Such a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied. I do not think that the judgment of the majority of the court in the Engineers’ Case meant to propound such a doctrine.'

That such a power now exists is indisputable. Its ambit alone must yet be resolved. Its restrictions, that is, activities denied to an exercise of the power, must be those that apply generally to legislative powers. A noncoercive power is no power – an absurd proposition – and no reason exists to confine the power to one extending only to permit Commonwealth funds to be drawn from its Treasury. The true rule is stated by Mason J.

Every implied power arises from constitutional language, history or political reality. Thus, in the United States, powers over aliens, the Indian tribes, foreign relations and the compulsory requisition of private property derive from implication based on history and political reality. This is explained in the Curtiss-Wright case. Australia differs from the United States in three relevant respects: it is not a union of states; Commonwealth powers were not granted to it by the States; and there is, and there never was, dual Commonwealth-State citizenship.

The emphasis given in the Engineers’ case to the express terms of the Constitution, the application ofthe “golden rule” of construction and the exclusion of broad implications (stigmatised as political) had the effect of enhancing national power. This effect was reinforced by the application of the principle referred to by O'Connor J in a now much quoted passage in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association:

… it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve.

For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.

Being the last speaker of the day I suppose has advantages and disadvantages. One disadvantage is that, as I had anticipated, much of what I would have wished to say about the Franklin Dam case has been said — and well said — by earlier speakers. One advantage, however, is that I may now speak substantially without fear of contradiction — perhaps the “infallibility offinality”, as it has sometimes been called, is not the exclusive province of the High Court! In any event, I will confine myself to some very general remarks — not so general, I hope, as to be trite, but general enough, at least, to put some of the points we have heard earlier today into perspective.