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constitutional interpretation « Previous | |Next »
April 11, 2005

The framers of the Australian Constitution, unlike their US and Canadian counterparts, decided to open their Constitutional debates to the public and to have parliamentary shorthand writers take down and publish their words. The Australian framers wanted us citizens to read the text of the Constitution in the light of their debates.

Yet for a long time---most of the 20th century in fact--the High Court split the text of the Constitution from the movement towards federation, and the debates about the Constitution, from which the text of the Constitution finally emerged. The Constitution was a stand alone text.

It was in his review of La Nauze's book,The Making of the Australian Constitution, that Leslie Zines reproduced that famous piece of High Court absurdity, the argument in Strickland v Rocla Concrete Pipes Ltd in which counsel and judges debated what they would find if they looked at the Convention Debates, while all the time affirming that, of course, they were not allowed to. The extracts ended with the following exchange:

Mr Ellicott: My friend Mr Lyons did refer to the convention debates as if they might support the view for which he contended. That reference, of course, was not permissible; but all I want to say is that if they were looked at, one would find the contrary.
Menzies J: That, too, is impermissible.
Mr Ellicott: No doubt your Honours will not look at them.

This hermeneutical nonsense didn't end until the 1980s. It is nonsense because the High Court purportedly grounded its constitutional interpretation in the "intention" of the Constitution(how can a text have an intention?) and yet, until the landmark decision in Cole v Whitfield in 1988), it did not permit recourse to the actual Convention Debates of the 1890s to guide the interpretation of the constitution.

It implied a legalism in which certainty is achieved by making constitutional law seem less value-laden, more interpretation-free, and less infused with the shaping of political relations (Federal/State) than it actually is. Legalism rejects the use of external political principles or policies to interpret the Constitution, and it displaces the subjective value judgements of individual judges.

Legalism is difficult to accept since Australia has a "bare bones" Constitution where much is left unstated, presupposed, unwritten (and flexible) conventions, and where implications are to be drawn from the text of the written Constitution.

Legalism often presupposes a literal approach to intepretation is that words of the reified text even have a single "natural and ordinary" or "essential" meaning that can be discerned.

Literalism as a mode of contitutional interpretation is difficult to accept since most words have numerous potential meanings. The actual meanings they do bear in any given situation depends on the context, history and the social setting in which they are uttered. Moreover the meanings of individual words shift depending on their relation to other words to other paragraphs in the text of the Australian Constitution and the relation this text to another text(eg., The American Constittuion).

| Posted by Gary Sauer-Thompson at 3:37 PM | | Comments (0)
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