Against Interpretation as an Alternative to Invalidation

Abstract

This article evaluates the rise of interpretation as an alternative means of judicially enforcing legislative compliance with rights. Instead of the traditional method where courts are empowered to invalidate statutes that are found to be incompatible with rights, the alternative empowers courts to interpret statutes in a manner that renders them compatible with rights. It argues that interpretation emerged as an alternative to invalidation among both constitutional reformers and judges in Australia (and elsewhere) in the 1990s and 2000s because interpretation was seen as a way of addressing democratic concerns about rights-based judicial review and as a less confrontational method of resolving rights issues. The article puts forward an argument for invalidation over interpretation on the basis that interpretation’s comparative appeal is not particularly strong—there are alternative ways of addressing the democratic concerns, and the connection between invalidation and confrontation is weak—and that invalidation is a more transparent, and therefore accountable, exercise of public power than interpretation.

Keywords: Constitutional Law, Australia, Bills of Rights, Invalidation, Interpretation

JEL Classification: K10