The Australian Constitution: interpritation

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  1. Introduction

Constitutional interpretation has been frequently discussed in many parts of the world, particularly Australia, which will be the main focus of the article. Generally, constitutions play a vital part in federal systems. Some theories of constitutional interpretation have been applied throughout a period of time until further reflection highlighted its shortcomings.[1] The debate over the importance of different modes of constitutional interpretation has been ongoing for a period of time.

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Before we begin considering the two major cases on hand and the different methods of constitution interpretation adopted in each, we will first reflect on the historical facts surrounding the emergence of the Constitution in Australia. The Constitution was drafted through the conventions of the 1980s, accepted by a referendum and then endorsed by a Statute of the British Parliament. Subsequently, the Commonwealth came into existence on 1 January 1901. It can be said that the distribution of powers in the Constitution was a reflection of the visions adopted by the founding fathers.[2] The functions and content of the Constitution mirror the agreement reached by the six colonies and accepted by a majority of its people.[3] With this background in mind, to refer to cooperative federalism as a ‘political slogan’ is to risk undermining the historical procedure which brought the Constitution in existence in the first place.[4] In Australia, the role of interpreting the Constitution is left to the High Court, but some leeway still remains for interpretation by the Parliament.[5] This is evident in cases where the Court defers the judgment to the Parliament or where a non-justiciable issue arises.[6] Since federation, there has been many debates surrounding the scope of powers listed in section 61 of the Constitution.[7] In making such a claim, initial and crucial issues arises, namely how a constitution and constitutionalism are best understood. Generally, there are two main competing views surrounding this contention. The first being that written constitutions are about locking things in.[8] In applying this view, it is understood that the Constitution does contain a list of Federal and State powers, rules related to how members of the Parliament are elected and so on. Such things will make it harder than normal for it to be altered or removed completely.[9] Therefore, the main point of adopting a written constitution is so that such rules can be locked in. The second view adopted is completely different to the first. Essentially it involves setting up guidelines and values that needs updating and reviewing from time to time as society changes and develops.[10]

  1. Modes of Constitutional Interpretation

The subject of constitutional interpretation has been the talking point of many for the past few decades.

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