LAW 2501 Lecture Notes - Lecture 1: Ian Callinan, Amalgamated Society Of Engineers V Adelaide Steamship Co Ltd, Owen Dixon
23 May 2018
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CONSTITUTIONAL INTERPRETATION
WHY INTERPRETATION IS IMPORTANT
❖ C* sets out structure of federation
❖ Gives Cth powers
➢ s 51 legislative powers of Cth parliament (40
listed heads of power- defence, tax etc); s 52
exclusive powers of parliament (3 heads); 122
government of territories
❖ Therefore, interpretation of C* determines how
federation operates
➢ Broad interpretation = wide Cth power,
reduces jurisdiction of states
➢ Narrow interpretation = wide state power
LEADING APPROACH
❖ Engineers Case (1920): changed view of
interpretation from originalism (which worked
because the first 3 HC judges were the framers) to
the orthodox view, that could be employed by
judges who didn’t write the c* - free from political
ideas outside the C* (eg that there should be a
strong Cth and weaker states)
❖ ** held: use legalism, combined with literalism
and originalism, when interpreting C*. look at text
of C* as a whole
Legalism (combo of literalism and originalism)
❖ Regarded as the orthodox/ only way to interpret
❖ C* already has a pre-determined right answer to
any legal problem, and the judge’s task is to find
that predetermined answer by a mechanical
process. No judicial choice.
❖ Use: Start with literal meaning of the word then
apply legal reasoning/ logic/ precedent/
fundamental principles/ surrounding text to make
sense of single word
❖ Deliberately avoids political and moral issues- just
gives legal answer
➢ Critique: can twist legal reasoning to achieve
political outcome
❖ Engineers case 1920: Give words their natural &
ordinary meaning in light of the common law and
the history in which the constitution was created. If
text is explicit, the text is conclusive. If text is
ambiguous, look to context of act
❖ Dixon J: strict & complete legalism is the only safe
way to interpret as it rejects policy implications &
keeps parties happy
➢ Critique: Legal doctrine does not always
provide predetermined solutions. At certain
points judges are driven to make individual
choices Prof Juluis Stone
Literalism/ textualism
❖ Use: text of C*, a dictionary, precedent, traditional
legal principles and techniques
➢ Won’t solve most problems of interpretation,
literal meaning is only a definition, no regard
to context
➢ Confusion between what different people take
literally- ordinary meaning differs
Originalism
Intentionalism
❖ Goldsworthy: interpret by looking to framer’s
intention – what did the people who wrote it
mean?
➢ Use: debates at Federation conventions: Melb
1890; Syd 1891; Melb, Syd, Adl 1897-8
▪ Gleeson J in Singh: Shows what people
understood, knew believed, thought about
the proposed instrument, and the
circumstances surrounding events
involved in its preparation
▪ Critique: no solution to ambiguity as
debates show no agreement
➢ Interpretation can be adapted to changing
circumstances by:
▪ Following erroneous interpretation
▪ Judicial creativity when C* s ambiguous,
vague or inconsistent
▪ Distinction between denotation and
connotation of terms
• Connotation = fixed core
characteristics of term
• Denotation = any qualities which may
change from time to time, but still fit
within the fixed connotation
➢ Issues- framers may not have thought about
question. May have been developments since
the 1890s which were never envisaged
▪ May have wanted meaning to be flexible,
knew they were drafting a doco which
would endure. Intentionally built in some
flexibility
▪ OR they may have never wanted meaning
to change, but stick to literal meaning
▪ OR framers may have disagreed as to
meaning of word
➢ Critique- why should we be bound by the
framer’s intention? They shouldn’t dictate our
future. C* shouldn’t be controlled by the ‘dead
hand’ of the past
Textual originalism
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Use: text of c*, a dictionary, precedent, traditional. S 51 legislative powers of cth parliament (40 listed heads of power- defence, tax etc); s 52 exclusive powers of parliament (3 heads); 122 government of territories legal principles and techniques. Won"t solve most problems of interpretation, literal meaning is only a definition, no regard to context. Confusion between what different people take literally- ordinary meaning differs. Broad interpretation = wide cth power, reduces jurisdiction of states. ** held: use legalism, combined with literalism and originalism, when interpreting c*. look at text of c* as a whole. Regarded as the orthodox/ only way to interpret. C* already has a pre-determined right answer to any legal problem, and the judge"s task is to find that predetermined answer by a mechanical process. Use: start with literal meaning of the word then apply legal reasoning/ logic/ precedent/ fundamental principles/ surrounding text to make sense of single word.
