Ever since its inception, one of the High Court’s primary duties has been to interpret the Australian Constitution. There have been many methodologies used to do so and many schools of thought (have been adopted by different judges) in approximately the last hundred years, but so far there still isn’t one consistent and cohesive way of interpretation . In this essay three types of options or methodologies that have been more commonly used by High Court judges will be discussed. They include: literalism/legalism, originalism and progressivism. Other options that may be considered by the High Court will also be examined in this paper. Literalism/Legalism
Since the Engineers’ Case 1920, the Australian High Court has interpreted the Constitution using Literalism. This is based on the belief that the Constitution is a statute and that it should be interpreted in its “natural and ordinary meaning” . The decision in the Engineer’s Case also removed the “implied immunity of instrumental” and “reserved State powers”. In doing so, the Engineers’ Case started the modern foundation for the creation of a true nation, seeing the Constitution as merely a contractual obligation between the States was an outdated belief and there was a new understanding of the meaning of federalism . The High Court also adopted the literalist/legalistic approach through the Engineers’ Case . In creating the Constitution, the government has set out the law through framing the Constitution in words, and the words of the Constitution are binding . The Court’s duty when there is a binding text is to interpret the meaning of the wordas by giving the literal words legal meanings because they are not at liberty to re-construct a textually binding Act, especially the Constitution .The failing of the literalist/legalist approach is that usually the issue being decided from the text does not usually have a rigid and limited meaning . Originalism
The second type of methodology is originalism. The two main originalism theories are original intent and textual originalism. Original intent is when the interpreter of the Constitution will search for the intention of the framer at the time of the construction of the Constitution using the words as their tool . Finding original intent can be very difficult as shown in the Work Choices Case . The majority of the judges argued that the meaning of the section in the Constitution could not be interpreted based on the intention of the creator because the issue before the court today was not the same as it would’ve been at the time the Constitution was constructed, therefore it is unreasonable to interpret the meaning of the section based on the framer’s intention . Another problem is that the judge’s interpretation might be mistaken as trying to uncover the framer’s intention could be historically impossible . If the intentions of the framer cannot be discovered then it is unwise to use original intent at all as a method . Textual originalism is when the interpreter of the Constitution’s sole attention is on the words of the text and believed that the Constitution has a fixed meaning relevant at any one time . This type originalism was conveyed in Australia by the judgment of O’Connor J in The Drawbacks Case . He believed to interpret the meaning of the Constitution; the interpreter needs to construe the intention communicated through the statute itself as you would with any other statute . Originalism is still criticised because of the “dead hand” theory . Moderate originalism theorists argue against the above-mentioned theory because they think that there would be no laws and no Constitution if we did not have the hand of the past as it is with past generations that norms, laws and judicial authority are all given to us . Progressivism
The Constitution was framed in the1900; therefore it follows that the framers couldn’t have possibly predicted the technological advancements that we have today . The...
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