Parliament's Role in Constitutional Interpretation
43 Pages Posted: 18 Jun 2014 Last revised: 13 May 2015
Date Written: June 16, 2014
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-centered 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-centered 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.
Keywords: parliament, constitutional interpretation
JEL Classification: K1
Suggested Citation: Suggested Citation