The Grain Pool of WA v The Commonwealth [2000] HCA 14 | Case summary

The Grain Pool of WA v The Commonwealth [2000] HCA 14 | Case summary | Zoe

Section 10 of the Breeder's Rights Act is in similar terms to s 5 of the Varieties Act. In particular, s 10 stipulates that nothing in the statute requires or permits the granting of plant breeder's rights in a plant variety unless "the breeding of the plant variety constitutes an invention for the purpose of paragraph 51(xviii) of the Constitution" (par (b)) or, if Australia is a party to "the Convention", the grant is appropriate to give effect to the obligations of Australia thereunder (par (a)). The term "Convention" for the purposes of the 1994 statute is defined in s 3(1) as meaning the International Convention for the Protection of New Varieties of Plants, a copy of the English text of which is set out in the Schedule[2]. It is common ground on the pleadings that Australia at the date of the writ in this action was not a party to the Convention, as so defined. It was, however, at the time of the grant in respect of Franklin barley a party to the Convention as then defined for the purposes of the Varieties Act.
The second defendant maintains that it is the licensee from the State of Tasmania of the Franklin barley rights, that it has the exclusive right to sell and export Franklin barley, and that the plaintiff, in selling within Australia and in exporting from this country Franklin barley, has acted in breach of the second defendant's rights.
The essence of the issues raised by the constitutional questions which are reserved is (a) whether the grant of rights in respect of Franklin barley under the Varieties Act was of no effect because that statute, in providing for such a grant, was beyond the legislative power of the Commonwealth and (b) whether, even if those rights were then validly granted, s 82 of the Breeder's Rights Act could not validly continue the rights in Franklin barley by reference to the new legislation.
The provisions in both statutes respecting the Convention were designed to engage the power of the Parliament to make laws with respect to external affairs under s 51(xxix) of the Constitution. If their validity were upheld on the other ground put forward, s 51(xviii) of the Constitution, there would be no need to consider the external affairs power. We propose then to consider first the operation of the power in s 51(xviii).
It should be noted at the outset that the terms of s 5(a) of the Varieties Act and s 10(b) of the Breeder's Rights Act engage the constitutional head of power as the criterion against which every grant under the legislation is to be measured to determine the efficacy of the grant. That method of drafting thus has the effect of engaging the constitutional head of power as the factum upon which the statute operates from time to time.
In R v Federal Court of Australia; Ex parte WA National Football League, Barwick CJ observed[3]:

The judgment of the Court in Nintendo and those of Higgins J and Gibbs CJ, delivered across the lifespan of the Court, exemplify the first of the general principles of constitutional interpretation to which reference has been made. They reflect what the foundation members of the Court had intended by their adoption in Baxter v Commissioners of Taxation (NSW)[26] of a passage of the judgment of Story J delivering the opinion of the Court in Martin v Hunter's Lessee[27]. In that well-known statement with respect to the interpretation of the United States Constitution, Story J had stressed that the legislative powers of the Congress were expressed "in general terms", so as "to provide [not] merely for the exigencies of a few years, but … to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence".
These words do not suggest, and what follows in these reasons does not give effect to, any notion that the boundaries of the power conferred by s 51(xviii) are to be ascertained solely by identifying what in 1900 would have been treated as a copyright, patent, design or trade mark. No doubt some submissions by the plaintiff would fail even upon the application of so limited a criterion. However, other submissions, as will appear, fail because they give insufficient allowance for the dynamism which, even in 1900, was inherent in any understanding of the terms used in s 51(xviii).
The collocation in s 51(xviii) represents a classification of the various species of intellectual or industrial property which had developed in the United Kingdom in the second‑half of the nineteenth century. This development had been encouraged by the publication of what became standard treatises on copyright, trade marks and patents[28]. These works had dealt with the appearance of the modern statutory regimes in legislation such as the Patents, Designs, and Trade Marks Act 1883 (UK) ("the 1883 Act"). The scheme of the 1883 Act had been followed in Queensland, Victoria, Tasmania and Western Australia[29]. These works also had dealt with the international movements which culminated in the Union for the Protection of Industrial Property established by the Paris Convention of 1883, and in the Bern Convention of 1887 for the protection of the rights of authors over their literary and artistic works.
In the eighteenth century, the courts and commentators had debated the nature of intangible property, particularly in literary works, and whether and how boundaries were to be drawn around that property. However, by federation, the specification of legal categories of intellectual property meant that in the United Kingdom the focus of attention had moved to concentrate upon "the equally important but far less glamorous question of the minutiae of intellectual property law"[30].
Nevertheless, attending to that minutiae, it is important to note that, within the terms used by Higgins J in the passages from the Union Label Case set out above, it would be wrong to regard the legislative grant of monopoly rights in new plant varieties as being, in 1900, outside the "central type" of the subject of patents of inventions. In his recent judgment for the Court of Appeals for the Federal Circuit in Imazio Nursery, Inc v Dania Greenhouses[31], Judge Rich explained legislative proposals before the Congress more than a century ago. His Honour said[32]:

The modern classification of copyright into literary, dramatic, musical and artistic works dated in Australia from the Copyright Act 1905 (Cth)[49]. In the United Kingdom, the changes were made by the Copyright Act 1911 (Imp) ("the 1911 Act") which repealed (by the Second Schedule) some 21 statutes beginning with the Engraving Copyright Act 1734[50]. Many of these had required registration as a requirement of recognition or of the availability of particular remedies for infringement. A striking departure in the 1911 Act was that it had no registration system. The 1911 Act also (in s 31) abolished common law copyright in unpublished works. This common law copyright was still recognised in 1900[51]. However, perhaps as a reflection of the state of technology at the time, the 1911 Act did not provide for distinct copyright protection in respect of sound recordings, cinematograph films or broadcasts. That circumstance, however, would not deny to those provisions in the Copyright Act 1968 (Cth), which now protect such subject-matter, the character of laws with respect to copyright.
In the United Kingdom, the first comprehensive legislation for the registration of trade marks was the Trade Marks Registration Act 1875 (UK). The first of a series of statutes providing for the administration of patent law on a modern footing had been the Patent Law Amendment Act 1852 (UK). The 1883 Act put those three subjects in the one statute. In 1900, the United Kingdom statutory regimes with respect to copyright, trade marks, patents and designs were of recent origin and, like the common law, they were plainly still in various stages of development. This was true also of the legislation in force in the Australian colonies before displacement by federal law[52]. That development has continued to the present day.
The Statute of Monopolies of 1623 had purported to be declaratory of the common law by indicating the limitations established by the common law upon the exercise of the prerogative of the Crown to grant monopolies[53]. Thereafter, the scope of permissible patentable subject-matter involved an inquiry "into the breadth of the concept which the law [had] developed by its consideration of the text and purpose of [that statute]"[54].
The growth of a modern administrative system was important for pursuit of that inquiry. The modern Patents Office had been first established by the Patent Law Amendment Act 1852 (Imp)[55] and the appointment of examiners' functions approximating those now understood awaited the 1883 legislation. There was no examination for prior publication until the procedures established in the United Kingdom by s 1 of the Patents Act 1902 (UK) and, in Australia, by s 41 of the Patents Act 1903 (Cth).
There were in 1900 unresolved issues respecting the interrelation of the various intellectual property regimes. A legislative attempt to deal with the overlap between copyright and registered design law later was made in s 22 of the 1911 Act. This provision in turn gave rise to much uncertainty and litigation[56]. In the case law at the end of the nineteenth century attempts were made to differentiate the nature of the protection afforded under the patent law and that with respect to registered designs[57]. Efforts also were made in that period, in authorities recently discussed in this Court in Data Access Corporation v Powerflex Services Pty Ltd[58], including Baker v Selden[59] and Hollinrake v Truswell[60], to distinguish the distinct conceptual bases of copyright and patent law. The point also is made in Data Access that what sufficed for originality in copyright law was less than that for novelty in patent law.
Given these cross-currents and uncertainties in the common law and statute at the time of federation, it plainly is within the head of power in s 51(xviii) to resolve them. It also is within power, as the legislation upheld in Nintendo demonstrates, to determine that there be fresh rights in the nature of copyright, patents of inventions and designs and trade marks.
The broad term "intellectual effort" used in Nintendo embraces a variable rather than a fixed constitutional criterion. In addition to the matters referred to above respecting originality and novelty, it will be recalled from the earlier reference to the Trade-Mark Cases[61] that the efforts in coining a new trade mark were insufficient to qualify as authorship or invention. Hence the need for a specific reference to trade marks in s 51(xviii). This Court since has held that there may be sufficient "authorship" of a trade mark under the Australian legislation in adopting in the course of trade in this country a mark used by others abroad[62]. The "origination" or "breeding" required respectively by the Varieties Act and the Breeder's Rights Act involves sufficient "intellectual effort" in the sense of that term in Nintendo.

At the time of the enactment of the Constitution, there was still awaiting for final decision the question whether it was enough that a process produced a useful result or whether it was necessary that some physical thing either be brought into existence or be so affected such as better to serve the purposes of mankind[64]. The point was not settled until the celebrated judgment of Dixon CJ, Kitto and Windeyer JJ in National Research Development Corporation v Commissioner of Patents[65]. Their Honours held that the requirement of a "vendible product" for a valid process claim meant no more than that the end produced be of utility in practical affairs[66].
As we have indicated earlier in these reasons, the plaintiff accepts that the effect of the decision in National Research Development Corporation is to confirm that there is no intrinsic impediment to the patentability of plant varieties[67]. Such a concession is properly made. Reference, by comparison with the Australian legislative history, may be made to the United States legislation on the subject. We have referred to the discussion in Imazio Nursery, Inc v Dania Greenhouses. The matter earlier was considered by the Supreme Court of the United States in Diamond v Chakrabarty[68].
The decision in Chakrabarty was that live, human‑made, micro-organisms were patentable subject-matter within the statutory requirement of an invention or discovery in the Patents Act 1952 (US) as being "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof"[69]. However, in the judgment of the Supreme Court of the United States, reference was made to the enactment in 1930 of the Plant Patent Act (US), which afforded patent protection to certain asexually produced plants, and to the 1970 Plant Variety Protection Act (US), which authorised the grant of patents for certain sexually reproduced plants, but excluded bacteria from its protection[70]. That Court pointed out that, prior to 1930, the belief that plants, even those artificially bred, were products of nature for the purposes of the patent law was thought to remove plants from the possibility of patent protection. However, the Supreme Court stressed that, in enacting the 1930 statute, Congress had explained at length its belief that the work of the plant breeder "in aid of nature" was patentable invention. Sexually reproduced plants had not been included in the 1930 legislation because new varieties could not then be reproduced true-to-type through seedlings. By 1970, it had been generally recognised that true-to-type reproduction was possible and that patent protection was therefore appropriate[71].

The plaintiff also contends that, in any event, novelty itself is intrinsic to the concept of patentability but is not a requirement of either statute. It is said that, on that account, each statute falls outside the constitutional power. An examination of this submission requires attention to the terms of the legislation.
Provisions in the Varieties Act for the grant of plant variety rights turned upon the requirement of novelty. Application was to be made by "a breeder of a new plant variety" or an assignee of such a person (s 15). The application would not be granted if, before the making of the application, there had been a sale in Australia of a plant of the variety in question or of reproductive material of that plant and the sale had been by or with the consent of the breeder of the variety or a successor of the breeder (s 14(a)). If the sale in question took place in another country, then s 14(b) forbad the grant of plant variety rights if the sale took place earlier than six years before the making of the application.
Exclusive rights given upon grant were listed in s 12 as being "in respect of a new plant variety". The definition in s 3(1) of "new plant variety" included two elements of present importance. The first (par (a)) was that the plant variety be "originated" by a person, and the second (par (d)) was that the plant variety be "distinguishable by one or more important morphological, physiological or other characteristics from all other plant varieties whose existence was a matter of common knowledge at the time when the application in respect of the variety was made".
Sub‑sections (3A), (4) and (5) of s 3 deemed persons who had conducted certain activities to have originated the variety in question. In particular, a person who selected a plant variety from a plant population which that person had grown, being a plant variety that was distinguishable, in the sense given by par (d) of the definition of "new plant variety" set out above, was to be taken to have originated that variety (s 3(3A)).
In addition, s 35 of the Varieties Act provided a relevant ground for revocation. Section 35(1)(a) obliged the Secretary to revoke plant variety rights in respect of a plant variety if satisfied that the plant variety was not a new plant variety. Further, in an infringement action, the defendant might counterclaim for revocation on the ground that the plant variety was not a new plant variety (s 41(2)).
The result is that the Varieties Act took as a criterion of operation for valid grant a requirement of novelty in the sense spelled out in these various provisions. It may be accepted that there is a requirement of "novelty" in the constitutional concept of "invention", but that requirement may be satisfied by various legislative regimes. These regimes need not display any fixed character. For example, s 100(1)(g) of the Patents Act 1952 (Cth) determined novelty by reference to the state of affairs in Australia at the priority date of the claim in question. On the other hand, s 7(1) of the 1990 Patents Act requires comparison between the invention and the "prior art base". The relevant effect of the definition of "prior art base" in Sched 1 of that Act is that it includes information in a document publicly available outside Australia. There was no constitutional constraint upon the adoption by the legislature of these differing criteria for the establishment of novelty in patent law. The same is true of the regime established by the Varieties Act.
The position respecting the Breeder's Rights Act does not relevantly differ. A plant variety can only be registrable if the variety has not been exploited or has only been "recently exploited" (s 43(1)(e)). A plant variety will be taken not to have been exploited if, at the application date, there has been no sale by or with consent of the breeder of propagating or harvested material of the variety (s 43(5)). Sub‑section (6) of the same section gives content to the notion of "recent exploitation". It requires an inquiry as to whether more than one year before the application date "propagating or harvested material of the variety" has been sold in Australia to another person by or with consent of the breeder. A period of four years applies (and six years in the case of trees or vines) where the sale takes place in the territory of a foreign State or intergovernmental organisation that is a party to the Convention as that term is defined in s 3(1).
Further, the plant variety must be "distinct", that is to say "clearly distinguishable from any other variety whose existence is a matter of common knowledge" (s 43(1)(b), (2)). The plant variety for which application is made must have a "breeder" (s 43(1)(a)) and the application must be made by the breeder (s 24(1)) or an assignee (ss 25, 26(2)).
In that regard, s 5(1) states:

The other ground upon which the plaintiff attacks the validity of the legislation fixes upon the term "patents" in the constitutional grant. The term "patent" itself is an abbreviation of "letters patent". This is a particular form of instrument by which the wishes and commands of the Crown are made known to the public at large or to the particular individuals concerned[91]. Letters patent have been employed by the Crown for such purposes as detailing the incidents of the office of Governor-General of Australia[92] and to make grants of such things as lands and other hereditaments, rank (eg peerage), offices (eg Queen's Counsel), franchises (eg to conduct a market or fair in a particular town[93]) and monopoly rights. It is with the legislation dealing with a species of the latter category that s 51(xviii) is concerned.
The plaintiff submits that the use in s 51(xviii) of "patents" imports notions of exclusivity of use and exploitation. Conditions and qualifications on the grant of variety rights and breeder's rights are so extensive and the compass of the "rights" themselves is so limited that the legislation falls outside the constitutional boundary. The plaintiff refers in particular to provisions in both statutes by which a grantee is obliged to meet the reasonable requirements of the public[94] and may be subjected to conditions restricting the powers of assignment and license[95] and requiring the supply of reproductive material and plant specimens to specified authorities[96].
These submissions direct attention to what in 1900 was understood as embraced in the notion of a "patent" for an invention within the meaning of the Jacobean statute. It was well settled before 1900 that conditions or provisos might be attached to the patent grant, and that failure to observe them could lead to revocation of the patent in any action for a writ of scire facias[97]. The requirement that the patentee sufficiently specify the working of the invention, although now legislatively based[98], was first established by a practice of attaching to patent grants a condition or proviso to that effect.
The process by which this came about was described as follows by Lord Diplock in Bristol-Myers Co v Beecham Group Ltd[99]:

The facts necessary to the resolution of the two questions reserved for the opinion of the Full Court[111] are set out in the joint reasons. So are the relevant provisions of the Plant Variety Rights Act 1987 (Cth) ("the Varieties Act") and the Plant Breeder's Rights Act 1994 (Cth) ("the Breeder's Rights Act"). So too are the issues before this Court and the substance of the arguments for the Grain Pool of Western Australia[112] (the plaintiff) which challenges the constitutional validity of the foregoing federal Acts.
The Commonwealth and Cultivaust Pty Ltd ("Cultivaust") appeared as defendants to defend the validity of the two Acts. Cultivaust is a company incorporated in South Australia. It is a grain merchant and trader which has been licensed by the State of Tasmania with the exclusive right to sell and produce the reproductive material of Franklin Barley (hordeum vulgare) (described in the licence as the "Cultivar") and to grant rights to others to sell and produce such reproductive material.
Pursuant to the Varieties Act, in January 1990, the State of Tasmania which had developed this variety of barley was entered on the register of the Varieties Act[113] as the grantee of "plant variety rights" in respect of Franklin Barley. In November 1994 the State of Tasmania was also entered on the register kept under the Breeder's Rights Act[114] as the holder of the plant breeder's rights specified in that Act[115]. Notwithstanding the rights acquired by Cultivaust under the licence, the plaintiff asserted that Cultivaust's intended action to run a grain pool of Franklin Barley in Western Australia and to deliver and market that produce as proposed, would contravene the Grain Marketing Act 1975 (WA)[116]. Cultivaust argued that, to the extent that the lastmentioned State Act purported to restrict the exercise by it of rights derived under the Varieties Act and the Breeder's Rights Act of the Commonwealth, the Western Australian law was invalid by reason of inconsistency with the federal laws[117]. It was in these circumstances that the question of the validity of the federal laws was raised. That question was excised from proceedings commenced in this Court on the inconsistency question for the opinion of the Court as now constituted.
Two primary bases for the validity of the federal laws were propounded. They were the lawmaking power of the Federal Parliament with respect to "external affairs"[118] and that with respect to "copyrights, patents of inventions and designs, and trade marks" ("the patents power")[119]. Each of these heads of power was relied upon[120]. Each was challenged in argument before this Court[121]. In addition, Cultivaust and its allies[122] called for constitutional support from another head of federal legislative power which it is not necessary for me to do more than mention[123].
Full argument was heard on the external affairs power. The position so far as that source of constitutional validity of the federal laws is complicated by revision of the applicable international convention[124] and by the fact that Australia had not at the time the matter was argued before the Court, subscribed to the convention as altered in 1991[125]. In so far as reliance was placed upon that convention as a basis for the making of a federal law with respect to external affairs, the fact that Australia was not then a party to the latest version of the convention introduced a difficulty that could be avoided if the basis were unnecessary to validity. If the validity of the federal laws, propounded by reference to the patents power, were upheld the demonstration of any alternative or additional sources of validity would be unnecessary[126]. Unless those laws treated the subject matter in a way which was in part dependent upon the other constitutional foundation relied upon, or imposed a limitation on the exercise of power (as s 51(xxxi) does), it would suffice for the Commonwealth and Cultivaust to support the federal laws by reference to the patents power alone. This would leave the question of the ambit of the external affairs power in respect of the subject matter of an international treaty to be elucidated in a future case where such elucidation was essential[127].
It is in this way that I come, as the joint reasons do, to address the scope of the lawmaking power conferred on the Federal Parliament by s 51(xviii) of the Constitution. Because, in my view, that paragraph suffices to sustain the validity of each of the federal laws in the respects challenged in these proceedings, the answer to the questions reserved can be given based upon that head of power. Nothing more is required.

Even more emphatic were the views of O'Connor J. He described the enactments in force in the Australian colonies in 1900 in relation to trade marks[136]. He referred to the laws of Great Britain and of other parts of the British Empire at that time and the exposition of the English courts and courts of the colonies before the moment of federation. Even "American Statutes in force in 1900 and many decisions of the American Courts pronounced before that period" were taken into account[137]. He then proceeded "to consider what … in 1900 the nature of the group of rights created at common law and recognized in England and in Australia by Statute law and by the commercial and business world" under the designation of "trade mark" meant[138]. Thus, for the majority in the Union Label Case, the reference point was clear. What did "trade marks" mean in 1900? What considerations were in the minds of the writers of the Constitution when they adopted that expression in s 51(xviii)?
The members of the minority certainly examined the statute and common law as it existed before Federation[139]. This, it will be realised, was then only seven years earlier. The reasoning which Isaacs J and Higgins J pursued to their respective conclusions, whilst acknowledging the objectors' argument as grounded in the accepted definition of "trade mark" in 1900[140], did not necessarily embrace 1900 as the terminus, after which further legal developments was to be ignored. They dealt with the argument within the scope of the objectors' submissions. However, as the passage in the opinion of Higgins J with which I began these reasons indicates, their ultimate criterion was not preFederation legal understandings but a search for the "essential characteristics" of the words used in the Constitution[141]. In my view, this is the correct approach. The words used in the Constitution, and specifically those used in s 51(xviii), are not shackled to the legal understandings about the patents power in 1900. It is a mistake to adopt that year as an important, and a greater error to regard it as a critical or essential, reference point.

Viewed from today's perspective, it is easy to understand how the Justices of this Court in 1908 adopted the criterion of the law as it stood in 1900 in order to ascertain the "ambit, [and] the circumference, of the power"[142] conferred upon the Parliament by s 51(xviii) of the Constitution.
First, all of the participating Justices had played a leading part in the Constitutional Conventions and in the drafts which ultimately became the Australian Constitution. Their procedures at that time[143] denied recourse to the constitutional debates in order to elucidate the meaning of the provisions of the Constitution. Such recourse was considered unnecessary to the participants and inconsistent with the then prevailing approach to statutory interpretation. The acceptance that the search was for the meaning intended by the drafters was natural at that time when most of the drafters were living and some (including Griffith CJ, a drafter of the Constitution, and Barton J, the leader of the Conventions) were members of this Court.
Secondly, the acceptance of such a clear reference point was also natural given the then place of the Commonwealth of Australia in the British Empire[144], the enactment of Imperial legislation on matters which we would now describe as intellectual property law[145] and the recollection that would still then have been vivid of the difficulties that had arisen for Canada over that Dominion's attempt to enact a Copyright Act of its own[146].
The British North America Act 1867 (Imp)[147] had included "copyrights" within the legislative powers of the Canadian Parliament. However, the Copyright Bill of 1872 (Can) was reserved by the Governor-General of Canada for the Queen's assent. Such assent was withheld because of the Imperial interest in copyright[148]. The scope of the Canadian legislative power was raised again when a further attempt was made in 1875 to enact a Canadian statute, this time with success but only in respect of defined Canadian concerns. The maintenance of the Imperial interest in uniform copyright laws was re-expressed. The Canadian Copyright Act of 1889, which affected copyrights registered in England, was again reserved and disallowed. The Governor-General was instructed not to proclaim the commencement of the Act[149]. All of these troubles would have been known to the Justices deciding the Union Label Case. They would have tended to encourage a narrow view, and certainly a narrow exposition, of the power conferred by s 51(xviii). They would have done so not only by reference to the then current doctrines limiting the expansion of federal legislative powers at the cost of the States but also by an anxiety to avoid the confrontations with Imperial authorities that had marked the efforts of Canada to exercise legislative powers in this area. One way of achieving such avoidance would be to demonstrate that the power conferred by the Australian Constitution was that which had been in the minds of the Imperial Parliament and British Government when the Australian Constitution was enacted in 1900.
Thirdly, in 1908, the doctrine applied for the ascertainment of the legislative powers of the Federal Parliament was still affected by notions of the implied reserved powers of the States. This doctrine was derived from the structure of the Constitution, its imputed purposes and the then current understandings of the federation which it had called into existence[150]. Reflections of that doctrine may be found in the opinions of the majority in the Union Label Case. Thus, important to the reasoning of O'Connor J on the limited scope of the legislative power with respect to "trade marks" was the explanation that the Australian Constitution "embodies the terms on which the people of the several States agreed for the sake of union to surrender their autonomy in certain respects"[151]. Although that approach to federal legislative powers was to be overthrown in the Engineers' Case[152], that was twelve years into the future. This Court had in Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association[153] (reported in the same volume of the reports as the Union Label Case) emphasised the need for a broad interpretation of heads of federal legislative power. Despite this, the habit of mind of viewing the paragraphs of s 51 from the standpoint of reserved powers not surrendered by the States in 1900 undoubtedly put a check in 1908 on the view of their potential which only the Engineers' Case later removed.
Fourthly, the notion of judicial power in 1908 also encouraged an approach to the understanding of the scope of a grant of legislative power in s 51 by reference to the meaning and intent of those who had drafted the Constitution. That consideration would necessarily limit subsequent developments, whether in the understanding of legal terms, a change in the meaning of language or radically different social circumstances to which the language would apply. The approach can be seen in the exposition of O'Connor J in the Union Label Case[154]. His Honour cited with approval the dicta of the Supreme Court of the United States in South Carolina v United States[155], and Taney CJ's unfortunate decision in the Dred Scott Case[156]. It was the latter who had explained that the search of the Supreme Court was, and was only, for "the same meaning and intent with which [the Constitution] spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day"[157]. Adopting such an approach, it was natural enough to search for the meaning and purpose of the "trade mark" or patents power in the understanding of those terms in 1900. Certainly, that is the idea which reinforces the reasoning of the majority in the Union Label Case. It explains how, by the narrow view which they adopted, the label there propounded was held not to be a "trade mark" within the constitutional grant with respect to such matters.

There are many reasons why the foregoing approach, however correct it may have seemed when it was adopted by this Court in 1908, should no longer be observed as a criterion for constitutional elaboration of s 51(xviii) today.
First, those who were present at the conventions which framed the Constitution are long since dead. They did not intend, nor did they enjoy the power, to impose their wishes and understandings of the text upon contemporary Australians for whom the Constitution must, to the full extent that the text allows, meet the diverse needs of modern government[158]. Once the Constitution was made and brought into law, it took upon itself the character proper to an instrument for the governance of a new federal nation. A constitution is always a special law. It is quite different in function and character from an ordinary statute. It must be construed accordingly. Its purpose requires that the heads of lawmaking power should be given an ample construction because their object is to afford indefinitely, and from age to age, authority to the Federal Parliament to make laws responding to different times and changing needs.
Although it is sometimes helpful, in exploring the meaning of the constitutional text, to have regard to the debates in the Constitutional Conventions that led to its adoption[159] and other contemporary historical[160] and legal[161] understandings and presuppositions, these cannot impose unchangeable meanings upon the words. They are set free from the framers' intentions. They are free from the understandings of their meaning in 1900 whose basic relevance is often propounded to throw light on the framers' intentions. The words gain their legitimacy and legal force from the fact that they appear in the Constitution; not from how they were conceived by the framers a century ago.
Secondly, it is increasingly understood that the ultimate foundation for the authority of the Australian Constitution is not its enactment by a statute of the Imperial Parliament, as was formerly believed[162]. Historically, that is undoubtedly what happened; but only after thorough debate of the draft Constitution by most of the Australian people and acceptance of its terms by the electors then entitled to vote[163]. It is nearly seventy years since the United Kingdom Parliament renounced any lingering claims to legislative powers over Australia (save possibly at the request of Australia's own legislatures)[164]. The United Kingdom is, in relation to Australia, a foreign state[165]. Even in 1908, Isaacs J asserted that the grant of legislative power to the Federal Parliament had afforded it, in the matters specified, the same ample lawmaking powers as the Imperial Parliament then enjoyed[166]. The end of Imperial legislative authority over Australia having occurred long ago, it is inaccurate, in my view, to govern the meaning of the Australian Constitution wholly, or even in part, by reference to what was in the minds of the Imperial legislators in 1900 or of the Australian colonists who proposed the Constitution to them at that time.
Thirdly, since the Engineers' Case[167], the approach to the powers of the Australian Federal Parliament has been a distinct one, different from that adopted in other federations, specifically the United States of America[168]. The suggested constraints of federal implications or State immunities were overthrown. They were replaced by a rule, derived from earlier Privy Council opinions[169] to the effect that "if the text is explicit the text is conclusive, alike in what it directs and what it forbids"[170]. This was the approach which Isaacs J foreshadowed in the Union Label Case. It is similar to the approach which Higgins J took. It is an approach compatible with the view of the constitutional text released from conceptions derived by searching for meanings in 1900.
As Windeyer J was to explain in the Payroll Tax Case[171], the advent of the decision in the Engineers' Case did not mean that "the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly"[172]. The approach of the Engineers' Case was simply "a consequence of developments that had occurred outside the law courts as well as a cause of further developments there"[173]. Although this approach, which expands the powers of the Federal Parliament in the Australian Commonwealth at the expense of the States, has been criticised by some textwriters[174] and has even been called a "debilitating blow to federalism"[175], it has enjoyed on this Court staunch defenders[176]. It was not in question in these proceedings.
Fourthly, whilst remarks are occasionally offered which suggest that the search for the meaning of constitutional provisions is one directed to "give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention"[177] and whilst that methodology would lend some support to the exploration of the "intention of the makers of the Constitution" in 1900, I do not believe that it represents the approach which the Court has generally adopted in more recent years. It could not, in my view, easily be reconciled with the opinion in Sue v Hill[178] to the effect that the United Kingdom, for the purposes of s 44(i) of the Constitution, is a "foreign power". At the time of federation, and even when the Engineers' Case was decided, this Court declared that one of the "cardinal" features of the Australian Constitution was the "common sovereignty of all parts of the British Empire"[179].
A change of meaning has sometimes been explained by reference to the supposed alteration of the "denotation"[180] of a word itself of unchanging "connotation". But this linguistic device does not disguise the fact that the Court's search has become one for the contemporary meaning of constitutional words, rather than for the meaning which those words held in 1900[181]. The holding in Sue v Hill cannot stand with an approach to constitutional elaboration by reference to "original intent". A better illustration of the error to which that doctrine leads in constitutional construction cannot be afforded than that given in the Dred Scott Case[182] to which O'Connor J appealed in the Union Label Case[183] in explaining why he approached the meaning of s 51(xviii) by reference to the legal understanding of its words in 1900.
The foregoing considerations lead me to the opinion that the notion that language in the Australian Constitution is "changeless" in "nature and meaning"[184] no longer represents the contemporary approach of this Court to constitutional elaboration. In the controversy now before this Court I would not, therefore, give meaning to the word "patents" by reference to the understanding of that word in 1900. I do not believe the ascertainment of that meaning in 1900 is crucial or even important. What is to be put in the place of that approach?

In securing the meaning of a constitutional head of legislative power with respect to "patents of inventions" it is essential to start with a reminder that the task in which the Court is engaged is one of constitutional elaboration. First, the words used must be given "their plain and natural meaning"[185], but read in the context of an instrument of government designed to address the assignment of lawmaking powers generally for an entire nation and in a document highly resistant to formal change[186]. Unless there is something in the context of the rest of the Constitution to indicate that a narrower interpretation will "best carry out its object and purpose", ambiguities must be resolved in favour of a broad interpretation, given that the words appear in a Constitution[187]. Because what is under scrutiny is the grant of a lawmaking power for the future, designed to extend to possibilities difficult or impossible to conceive at the time of the grant, what is committed to the Federal Parliament under s 51(xviii) is not the class of particular patents but the whole subject of lawmaking on patents of inventions[188]. This was the foundation of the difference between the majority and the dissentients in the Union Label Case in relation to trade marks. Isaacs J, in a hint of the Engineers' Case yet to come, stressed the "plenary character of powers" in s 51(xviii)[189]. Higgins J, to like effect, in rejecting the attempt to impose on the construction so "rigidly and narrowly"[190], emphasised the amplitude of the ambit and circumference of the power[191], and demanded that account should be taken of the fact that it appeared within a constitutional instrument whose purpose was therefore to deal with a "whole subject"[192]. If it was natural for the original Justices to look back to 1900, it is not necessary today.
Secondly, it is essential to notice, as indeed Griffith CJ did, that the particular powers appearing in s 51(xviii) present themselves in a context where they are accompanied by other distinct but like notions. Griffith CJ explained that[193]:

Each of the categories mentioned in the paragraph must be given its full meaning. However, the appearance of each category (including "patents") within the context of other kinds of rights sharing in common temporary, monopolistic or oligopolistic characteristics, reinforces the amplitude of the grant. It is not unlimited. But neither is it narrow. And the collection of rights mentioned in the grant strengthens the pre-supposition that the Federal Parliament in Australia is to enjoy a most ample lawmaking power in respect of "products of intellectual effort" as that notion may itself expand, in part as a by-product to the very inventiveness which it empowers the Parliament to protect.
Thirdly, it is a mistake, in such circumstances, to confine the grant of power by reference to non-essential features of the historic developments of "patents" any more than of "trade marks". These were the points repeatedly made in the Union Label Case by Isaacs J and Higgins J and I agree with them. Thus, Isaacs J insisted that the search was ultimately not for the procedural or substantive incidents of "trade marks" as they had developed in England up to 1900. Instead, it was for something more fundamental and enduring (and therefore released from such a reference point). He described it as a search for the "really essential characteristics"[196], the "universal element"[197], the "fundamental conception"[198] or the "essential particulars"[199]. To the same effect, Higgins J described the search as being for the "essential differentia"[200]. Once the subject of the enquiry is addressed by reference to such essentials, the mind is necessarily freed from the preconceptions found in books of statutes and decisional authority concluding, with semi-arbitrariness, at the moment in 1900 that the Australian Constitution was enacted.
Fourthly, it is true that in the case of s 51(xviii) the words used are descriptions of particular legal categories. To that extent they may be contrasted with other paragraphs which refer to words in everyday use, words of given technology[201] or words concerned with particular places[202]. That fact, in the case of s 51(xviii), makes it more appropriate than otherwise to ascertain the legal content which such expressions as "copyrights", "patents of inventions and designs" and "trade marks" hold according to legal understanding[203]. But this is not a reason to assume that, unlike other heads of legislative power conferred by s 51, that relating to "patents of inventions" is fixed at its meaning in 1900, or controlled by the legislative and common law understandings developed to that time. In the Union Label Case, Higgins J pointed out that trade marks were used long before courts and legislatures took them up and regulated them in the nineteenth century[204]. They therefore had a meaning broader than that assigned to them by those sources. And once expressed in the Constitution, the words were set free.
In a class similar to the categories appearing in s 51(xviii) are other paragraphs in s 51 such as "bankruptcy and insolvency"[205], "marriage"[206] and "divorce and matrimonial causes"[207]. It would be astonishing if these expressions, although of legal connotation, were to be limited to the understanding which such concepts enjoyed amongst lawyers in 1900 or even that such concepts would be taken as an important point of reference for contemporary understandings. It would put a grave and unnecessary restriction on innovation which would contradict the constitutional function of the paragraphs.
Just as the ambit of "bankruptcy and insolvency" and "divorce and matrimonial causes" has expanded greatly since 1900, so may the concept of "patents of inventions". This point was neatly made by Higgins J in the Union Label Case by reference to the power to make laws with respect to "marriage"[208]:

More recently, in relation to the "marriage" power, McHugh J, whilst acknowledging that in 1901 "marriage" was understood as meaning "a voluntary union for life between one man and one woman to the exclusion of all others", speculated as to whether the Federal Parliament would not today enjoy "the power to legislate for same sex marriages" [because] "arguably 'marriage' now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others"[209]. This observation was noticed by the House of Lords in Fitzpatrick v Sterling Housing Association Ltd[210]. Their Lordships concluded that a reference to "family" in United Kingdom rent protection legislation of 1920 extended today to the survivor of a same-sex union. This could scarcely have been within the contemplation, still less the "intention" or purpose, of the British Parliament in 1920. It presents a particularly vivid illustration of the way that words in statutes are not fixed for their meaning by reference to the understanding of that meaning at the time of enactment. What is true of an ordinary statute is much more applicable to a constitutional text which may not so easily be changed and which is intended to operate indefinitely as a source for future legislation.
Fifthly, this does not mean that a word, whether of legal connotation or otherwise, is devoid of any content and may take on any meaning that the Parliament chooses to assign to it. In the Union Label Case, Higgins J pointed this out by reference to a supposed attempt to describe a will as a trade mark and thereby to secure federal legislative powers over wills[211]. This would be a sham. It would be the duty of this Court to declare such an attempt beyond power. Obviously, the Court must characterise the limits of the legislative power over "patents" as it must over "trade marks", "copyright" and any other subject matter of the Constitution. It does so by identifying the "really essential characteristics"[212] of the notion referred to.
What constitute such "really essential characteristics" may grow and expand, or may contract over time. But the key to finding the meaning is not to be discovered in the statutes and case books before and at 1900 or in the intentions of the framers of the Constitution adopted immediately before and given effect in that year. Because this is a constitution that we are interpreting, the Court's function is different[213]:

There is one further consideration which suggests that the reference to the categories of legal rights contained in s 51(xviii) should be given a specially broad interpretation, released from the conceptions of 1900. If, as this Court has held, the feature which links the rights provided in s 51(xviii) is the "enforcement of, intellectual property rights in original compositions, inventions, designs, trade marks and other products of intellectual effort"[214], there are special reasons why no narrow approach to the power, found by worrying about the conceptions common in 1900 or otherwise, should be imposed on this particular paragraph.
A universal feature of the twentieth century has been the dynamic progress and momentum of science and technology. The principal inventions of the century, which include flight, applied nuclear fission, informatics and biogenetics were all undiscovered, and for the most part unconceived, in 1900. Yet the Constitution certainly envisaged that the Commonwealth was entering an age of special technological inventiveness. So much can be seen in the specific provision of the post and telecommunications power in such wide terms[215].
Given the objects of the head of power, which include the facilitation and protection of intellectual inventiveness within Australia, it would be specially destructive of the achievement of those objects if the grant of power were to be attached - even as a primary reference point - to the particular notions which, up to 1900, "copyrights, patents of inventions and designs and trade marks" had been protected by the law. I do not believe that such an approach is necessary. It is certainly not desirable. The provision of copyright protection of genetically modified organisms[216] had certainly never been contemplated before 1900. This is for the very good reason that the science and technology of genetic modification was unknown at that time. It is unnecessary now to decide whether copyright law does or could extend to genetically modified organisms. It is sufficient to note that the issue is one of lively intellectual debate[217].
To the full extent that the language of the Constitution warrants and that other important values which it upholds permit[218], meaning should be given to a provision such as s 51(xviii) in a way that allows the section to respond to the very great variety of inventiveness that may be considered by the Federal Parliament to necessitate protection for the "products of intellectual effort"[219]. The future directions of such inventiveness are unknowable and likely to outstrip even our present vivid imaginations. Whether in particular contexts special and even new forms of such protection are desirable is a matter for argument and dispute. But power being present, the proper place for that debate ordinarily to occur is in the Parliament and in the Australian community which helps to shape the Parliament's decisions.
In the United States, where the constitutional head of power authorises the Congress "to promote the Progress of Science and useful Arts" by granting exclusive rights to authors and inventors "for limited Times"[220], the Supreme Court at first construed the power narrowly. It was seemingly influenced by a preference for free competition over private rewards and incentives[221]. In time, the Supreme Court came to recognise the legitimacy of a system "in which uniform federal standards are carefully used to promote invention while at the same time preserving free competition"[222]. In 1989, the Court struck down State legislation found to encroach on the federal design patent law[223]. Some of the doctrine in the United States courts has been influenced by First Amendment jurisprudence which may occasionally be antithetical to the suggested removal of existing knowledge from the public domain[224]. However, the advent of biogenetically engineered organisms[225] and of inventions in the field of information technology[226] have stimulated an apparently increased willingness on the part of United States courts to recognise the way in which patents and analogous forms of legal protection can sometimes encourage technological innovation to the economic and social benefit of the United States and beyond. The specific inclusion of s 51(xviii) in the Australian Constitution affords a further reason for assigning to s 51(xviii) a meaning that permits the protection of "products of intellectual effort" in the variety in which such products now manifest themselves and the even greater variety in which they can be expected to appear in the future.
Upon this basis, the lawmaking power with respect to "patents of inventions" within s 51(xviii) involves the provision by the state to the grantee of exclusive rights for a limited time to exploit, and to authorise other persons to exploit, a novel object or process of potential benefit to the community in respect of which a patent may be granted and which is recorded in a public register upon conditions of disclosure. This is the bedrock[227]. Nothing more is required by the "really essential characteristics" of "patents of inventions".
On this footing the plaintiff's submissions (and those of the State of Western Australia, intervening in its support), as recorded in the joint reasons, do not cast any doubt on the validity of the Varieties Act or the Breeder's Rights Act, there described. I reach this conclusion not on the basis of the meaning of s 51(xviii) of the Constitution according, or even by reference, to the accepted understandings of the terms used in 1900. I reach my conclusion in accordance with what I take to be the meaning of the phrase "patents of inventions", in its "really essential characteristics"[228] as understood in a constitutional context in Australia today.

The Grain Pool of WA v The Commonwealth

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