Constitutional Interpretation
The Constitution protects the separation of powers, making the High Court the ultimate arbiter of its interpretation.
High Court appointments are made in practice by the Governor-General on the advice of the executive, normally the Attorney-General.
Where legislation is found invalid by the judiciary it is generally treated as void ab initio.
Rulings handed down regarding the meaning and effect of legislation will normally be taken to represent that meaning and effect since enactment.
The courts will seek to retain as much law as possible, by means of:
● ‘reading down’: where more than one legitimate interpretations are available, but only one is constitutionally valid,the endorsement of the valid
interpretation; or
● ‘severing’: where the invalid text may be severed without compromising the function and object of the legislation as a whole, it is severed.
Approaches to Interpretation
Textualism/legalismSeeks to interpret the Constitution literally and apolitically.
Issues arise where the application of constitutional text to a given situation is ambiguous, and a discretionary call is required.
(See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (The Engineers Case) (1920) 28 CLR 129)
Progressivism
Seeks to advance the law in keeping with contemporary standards where appropriate.
Issues arise from the difficulty inherent in drawing a clear line between progressive interpretation and judicial amendment.
(See, eg, Sue v Hill (1999) 199 CLR 462) Originalism
Seeks to interpret the Constitution according to the will of those who drafted it.
Issues arise from the difficulty inherent in ascertaining that will, and from the paradox it creates as to the constitutional document’s purpose if its contents alone aren’t sufficient to interpret it.
Supplements to Interpretation
Stare decisisThe manner in which constitutional provisions have been interpreted in the past will inform their interpretation in future.
Comparative law
Where Australian precedents are absent or insufficient, comparative methods of interpretation may be used.
Comparisons to the USA are in some contexts of greater use than those to the UK, as the former has a written constitution.
International law
International laws have no necessary influence on constitutional interpretation, though the case has been made that interpretations ought to favour harmony with international law to the extent permitted by the text: Newcrest Mining (WA) v The Commonwealth (1997) 190 CLR 513, Kirby J.
Policy
Policy is not the domain of the judiciary, however some circumstances justify its consideration in constitutional interpretation: First Territorial Senators Case (1975) 134 CLR 201.
Characterisation
In order for a federal law to be valid, it must be capable of characterisation under one of the constitutional heads of power.
Characterisation seeks to identify what — if any — duties, rights, or powers are changed, created, or destroyed by a piece of legislation, and whether they can be reasonably located within the ambit of the powers provided by the Constitution:
South Australia v The Commonwealth (1942) 65 CLR 373, 424–5 (Latham CJ). Prior to 1920, the validity of Commonwealth laws was assessed according to the
‘reserved powers doctrine’, which was premised on the presumption the
Commonwealth was not empowered to legislate on, rather than what powers it did possess: R v Barger (1908) 6 CLR 41.
Post-1920, interpretation of the heads of power became more legalistic and rejected any implied provisions beyond those necessitated by the text itself, allowing for an expansion of Commonwealth legislative powers: The Engineers Case (1920) 28 CLR 129.
Only the direct objects of a law — and not any indirect and consequential effects — are taken into consideration when characterising it: Fairfax v Federal
Commissioner of Taxation (1965) 114 CLR 1.
A law may carry more than one characteristic and still be valid, so long as one characteristic brings it under a head of power: Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1.
A single law can be supported by multiple heads of power: Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1.
Motive and policy are similarly not considered: Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1.
Incidental characterisation
The Commonwealth is empowered to make laws dealing with matters ancillary to core subject matters within its power per s 51(xxxix).
● See, eg, with respect to s 51(i) (trade and commerce power):
● Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55;
● O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565.
Proportionality
Whether or not a law is proportional — ie fair and reasonable — is not a factor in characterisation: Leask v Commonwealth (1996) 187 CLR 579
Exceptions exist where the relevant head of power is purposive:
● The defence power provided by s 51(vi): see, eg, Australian Communist Party v The Commonwealth (1951) 83 CLR 1;
● The external affairs power provided by s 51(xxix): see, eg, Victoria v Commonwealth (ILO Case) (1996) 187 CLR 416;
● The race power provided by s 51(xxvi); and
● Incidental powers: Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55.
