Parliament's Role in Constitutional Interpretation

43 Pages Posted: 18 Jun 2014 Last revised: 13 May 2015

See all articles by Gabrielle J. Appleby

Gabrielle J. Appleby

University of New South Wales (UNSW)

Adam Webster

University of Oxford - Blavatnik School of Government

Date Written: June 16, 2014

Abstract

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

Appleby, Gabrielle J. and Webster, Adam, Parliament's Role in Constitutional Interpretation (June 16, 2014). (2013) Melbourne University Law Review, Vol. 37, p. 255; U. of Adelaide Law Research Paper No. 2014-20. Available at SSRN: https://ssrn.com/abstract=2452122

Gabrielle J. Appleby (Contact Author)

University of New South Wales (UNSW) ( email )

Kensington
High St
Sydney, NSW 2052
Australia

HOME PAGE: http://www.law.unsw.edu.au/profile/gabrielle-appleby

Adam Webster

University of Oxford - Blavatnik School of Government ( email )

10 Merton St
Oxford, Oxfordshire OX1 4JJ
United Kingdom

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