Parliament's Role in Constitutional Interpretation
Appleby, Gabrielle, Webster, Adam, Melbourne University Law Review
In Australia, the role of interpreting the Constitution is ultimately for the High Court, but some 'space' remains for its interpretation by the Parliament. Space exists in rare cases where the Court defers to the judgment of Parliament or where a non-justiciable question arises. In these cases, Parliament must consider constitutionality without assistance from the courts: 'parliament-centred interpretation. In the predominance of cases, while the final word on constitutional interpretation remains with the courts, we argue that 'best practice' requires individual parliamentarians to consider the constitutionality of Bills using 'court-centred interpretation. We demonstrate our argument using two case studies: the proposed amendments to the Marriage Act 1961 (Cth) to allow for same-sex marriage, and the passage of legislation following Williams v Commonwealth.
CONTENTS I Introduction II Extrajudicial Constitutionalism: Two Approaches A First Approach: Coequal Authority B Second Approach: Judicial Primacy with Deference C The High Courts Limited Deference to Parliament D Non-Justiciable Constitutional Questions E Parliament-Centred Interpretation F Court-Centred Interpretation and Constitutional Thresholds G Constitutional Best Practice H Where Do Parliamentarians Seek Advice on Constitutional Interpretation? III Same-Sex Marriage in Australia: A Constitutional Uncertainty A The Same-Sex Marriage Debate: What Does Best Practice Require? IV The Commonwealths Response to Williams: Constitutional Defiance? A The Commonwealth's Response to Williams: What Does Best Practice Require? V Conclusion VI Afterword
'Nobody has a more sacred obligation to obey the law than those who make the law.'--Sophocles
In comparison to the scholarship dedicated to judicial decision-making processes, the legislative process is under-studied. (1) This article explores the question of the Commonwealth Parliament's role in constitutional interpretation.
In Australia, the Parliament is the arm of government best placed to implement changes that ensure the law continues to reflect our social values. The Commonwealth Parliament operates within the rigidity of a constitutional text, which defines the scope of its power. (2) Parliament is often confronted with constitutional questions surrounding the limits of that power in fulfilling its lawmaking function. (3) Should Parliament implement legislative change even if the applicable constitutional limits are uncertain? Is there a threshold of uncertainty beyond which it should not legislate? Is it preferable, where uncertainty exists, for Parliament to engage the amendment process in s 128 of the Constitution to secure the constitutional basis for its actions? Can Parliament legitimately use constitutional uncertainty as a reason to refrain from legislating? How should parliamentarians interpret the Constitution?
We outline two theories of the interpretative mandate of a legislature, which provide a different amount of 'space' to the legislature to interpret the Constitution. (4) The first, which we term 'Coequal Authority', asserts an equal role for each branch of government in constitutional interpretation, in accordance with the features of that branch. The second, 'Judicial Primacy with Deference', places the judiciary as the primary constitutional interpreter, but accepts that in limited circumstances the court will defer to the interpretations of other branches because of their institutional characteristics. We explain that the latter approach is an accepted method of constitutional interpretation in Australia and outline the circumstances in which deference is afforded to Parliament.
We argue that in Australia there is an expectation that Parliament consider the constitutionality of proposed legislation, although such an expectation amounts only to an imperfect obligation. …