April 12, 2008
In this review of George William's Human Rights under the Australian Constitution in the Melbourne University Law Review by Glenn Patmore and Mathew Harding highlight William' analysis of the methodology of constitutional interpretation.They say that in chapter four, which is called ‘Constitutional Interpretation and Human Rights’. Williams follows the development of constitutional interpretation from Amalgamated Society of Engineers v Adelaide Steamship Co Ltd to the present.
He argues that the legalism and, more particularly, the literalism for which the Engineers’ Case stands, is a mask that the Court employs to disguise in value neutral terms what are in reality judgments based on policy and judicial values. By ‘legalism’ Williams means a close adherence to legal reasoning that creates ‘a reliance on technical solutions rather than considerations of policy.’...] Williams illustrates the impossibility of a pure literalism with a clever observation about the Engineers’ Case itself. He reveals that in rejecting the use of US authority as a proper source of guidance in constitutional interpretation, the majority in the Engineers’ Case actually relied upon non-textual considerations...
Williams continues by arguing that literalism has been gradually eroded by other interpretive concepts developed by the Court. Patmore and Harding say that in the conclusion to chapter four:
Williams contends that the selective application of literalism by the High Court has led to an ‘unarticulated tendency’ to defer to the doctrine of parliamentary sovereignty. Such an approach is no less political than one which seeks openly to foster human rights; it simply has different objectives. Furthermore, in a post-legalist era, when new concepts are beginning to inform constitutional interpretation, the Court has not developed a consistent approach, and as a result ‘[t]here is no articulated vision for constitutional rights in Australia.’
The doctrine of parliamentary sovereignty becomes a bedrock of conservative jurisprudence.
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So-called "human rights" have absolutely no relevance to the Australian legal system unless our parliaments explictly pass legislation incorporating them.