Constitutional interpretation


constitutional interpretation

Justices of the High Court of Australia, photographed in 2014

One important role of the High Court is constitutional interpretation – in other words, examining and making sense of our Commonwealth Constitution. Most legal theorists believe the High Court was created specifically to protect the Constitution, to ensure that it functioned correctly and effectively. Like the Supreme Court of the United States, the High Court of Australia serves as the guardian of the Constitution. It explains what the Constitution means and decides what impact this meaning should have on the law. A High Court ruling on constitutional matters or issues can have profound effects. The High Court can declare legislation from any Australian parliament unconstitutional and therefore invalid. Its rulings can dictate what rights Australians do and don’t have. Its interpretations can nullify precedents and decisions formed all Australian court hierarchies. One act of constitutional interpretation in the High Court can significantly alter the legal landscape in Australia.


Why is constitutional interpretation necessary? Firstly, the Constitution is now more than 110 years old and has rarely been changed, so in reality it is a very old document. Its creators are no longer with us and the passage of time prevents us from understanding their true intentions and purposes. Yet because the Constitution is our fundamental law, it is important to know and understand its exact meanings and intentions. This is the role of the High Court. The High Court must examine and interpret the words of the document and ascertain its core values, principles and meanings. Many High Court challenges have revolved around exactly what the drafters of the Constitution intended when they constructed certain sections, clauses or phrases. It is up to the Justices of the High Court to decide this.

The Constitution’s age also means that Australian society, government and law have evolved considerably since its creation. New technological developments such as electronic communications, changing social values and greater concerns with individual rights have all unfolded since 1901. The drafters of the Constitution could not possibly have foreseen these changes, so the High Court provides guidance and rulings on relevant matters. One High Court case, R v. Brislan (1935), offers an example of this. Brislan was charged under Commonwealth legislation with owning a wireless [radio] without a licence. Brislan challenged this in the High Court, arguing that Commonwealth legislation governing wireless licenses was invalid because the Constitution did not specifically grant the Commonwealth power to make laws about wirelesses. The High Court ruled in favour of the Commonwealth, interpreting its power under Section 51(v) (“…postal, telegraphic, telephonic, and other like services”) as including wireless services.

While the words of the Constitution rarely change, the meaning of particular words, phrases and sections is open to scrutiny and debate. Some phrases – such as Section 51(xxxi)’s “…on just terms” – are also quite broad and open to interpretation. This can lead to disputes or disagreements over the meaning of these parts of the Constitution – and this may lead to governments exceeding their law-making power, conflict between different laws or infringement of rights. The role of the High Court is to provide an explanation and a definitive ruling about how we should understand these parts of the Constitution.

As with statutory interpretation, interpreting the Constitution provides a link between its raw text and how the law should be applied in practice. The Constitution cannot possibly foresee or provide for all cases, situations or possibilities. The High Court therefore expands on the meaning of the Constitution and how its powers should be utilised and implemented. As with lower courts, the High Court can only form interpretations and issue rulings as cases are brought before it – the court cannot form constitutional interpretations of its own accord.



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