TOPIC 1: CONSTITUTIONAL INTERPRETATION
§ Australian Constitution is an act of British Parliament. Came into force on the 1st of January 1901, by referendums of the people of Australia. Before Federation, all Australian States were independent self- governing colonies, which subject to a large measure of control by Britain. Effectively separate entities that happened to share a continent, but each had their own govts, laws and identities.
§ Federation united all colonies (now called States) into one country. Federation provided many advantages including; breaking down the barriers to trade between colonies and having a central government which could make laws about things that affected the whole country such as defence, immigration. For all the colonies to come together and create a central govt was significant as each of the colonies had to give up some of their already existing powers.
§ Australian Constitution is the source of govt authority (legislative/executive/judicial). It confers but also limits governmental power (can only do things consistent with Constitution). Constitution can also confer individual rights, express national identity (Aus const: not written in inspiration language/identity form like South Africa post-apartheid cost Nelson Mandela) and constitutional can be unwritten (UK, lots of different documents such as Bill of Rights, Human Rights instead of just one document).
Methods of Interpretation
§ Constitutions have different functions. E.g. preamble to South African Constitution emphasises that the Constitution belongs to the people of South Africa and talks to the individual communities they govern.
The Irish Constitution emphasises the close relationship between Irish people, religion and history.
§ The function of our constitution? We don’t have a preamble, so often refer to the preamble of the Commonwealth of Australia Constitution Act 1900 (UK) which emphasis the critical function to create a federation and spread power between the new States and Commonwealth.
§ Main function is to establish a new federation, distribute power and to limit power of the provisions of the constitution. We can see this through the structure of our Constitution.
o Pre-Engineers: Between 1903-1920 the States had separate powers to the Cth known as reserved powers. The Cth was not allowed to make laws that were reserved to the States. If the Cth created a law in regard to a topic that was reserved to the State, then the law is invalid.
o Engineers Case: The implied immunities doctrine was abolished; each govt as a sovereign entity could not be bound by others exercise of legislative power and reserved powers doctrine was abolished; if a broad or narrow interpretation of Cth power is possible the court must prefer the narrow interpretation to ensure the power does not encroach on the ‘residual powers’ of the States. The case changed the method of constitutional interpretation from a form of originalism to one of legalism (and literalism).
§ The High Court has the authority to bring meaning to the words of the Constitution. Try and understand the concepts behind the approaches.
Literalism
§ Breaking down the sections into the sections into the literal meaning of the words (dictionary).
o This approach faces difficulties because a lack of context, whether that be past of present, makes it almost impossible to determine meaning (often ambiguous).
o Free to the individual interpreter of the lister e.g. go to the bank (actual bank or a lake)
Originalism (Intentionalism and Textual Originalism)
§ Originalism has two forms, and both rely on interpreting in light of thoughts/meanings at the time the Constitution was drafted.
o Intentionalism is the process of interpreting the constitution in light of what the original framers of the Constitution intended it to mean. The difficulty is that many people wrote the Constitution and did not all think the same thing. There was no agreement on what the interpretation could be so no solution to ambiguity.
Þ For intentionalists, to determine the intent of the writers can rely on sources extraneous to the actual text of the document.
o A variation of intentionalism is Textual Originalism which looks at the historical meaning of the words themselves - what the words meant at the time of drafting. It is examining whether there were specific words or phrases that had specific meaning at the time and interpreting it in light of that. Common understanding of the word at the time or a legal definition.
Þ E.g. Conservation in relation to rivers. 1901 - would be saving water for agriculture. Today - would be about environmental protection and maintaining ecosystem.
Legalism
§ Interpret the words according to their ordinary and natural meaning, in light of the common law and statutory history of those words.
§ The literal meaning won’t give you the meaning for everything so need to look further e.g. context.
o Legalism seeks to reduce judicial choice by confining consideration purely to authoritative legal materials, those materials themselves require recourse to external sources.
o Dixon J stated that the interpretation should rely on technical legal solutions rather than political factors. Extremely important example of this was the Engineers Case (1920).
Incremental Accommodation
§ Idea that the word of the Constitution had a fixed core meaning that never changes but application of the fixed meaning can change over time.
o A ‘connotation/denotation’ (also known as centre/circumference or enactment intention/application intention). Connotation is fixed or core characteristics. Denotation is what the characteristic embodied in a particular time. Or the centre is fixed, and the circumference may change.
Þ E.g. Words ‘foreign power’ in s44. In 1901 that would be a nation that is foreign to Australia so UK would not fall within this. By 1999, the UK was now a foreign power. The meaning of the words
‘foreign power’ had not changed but application did and now applies to UK.
Functionalism
§ Interpretation is not limited to formal legal sources. This method invites courts to rely on substantive constitutional values. The values are derived from the text, history or structure of the constitution e.g. rule of law. Quite an appealing method of interpretation, but lots of questions are raised
§ What are the values? Is equality a constitutional value? e.g. racism.
Realism
§ This considers the consequences of making a particular decision. Hence, relying on justice, morality and community values such as the Mabo case.
§ Leads to fragmentation - what is the difference between policy and law? This takes away the legalistic argument and replaces it with political agendas and personal views.
§ Critics: depends on who is applying the method and whose values are being applied. Realism is subjective and depends on what judges think is considered good or bad.
Purposive/Progressive Interpretation
§ This method relies on the current day context when interpreting what specific words or phrases mean.
o s51(6) Cth power over naval and military defence of the Cth. This does not include air force but there was no air force as the first flight was in 1960. However, it is about defence, so air force is included based on the changes in the world.
o The ‘living tree’ – continually adapting to the seasons and changes in society. Ability for the law to change and adapt over time. Most criticised interpretation.
