Australian Originalism Without a Bill of Rights: Going Down the Drain with a Different Spin
J Allan, 'Australian Originalism Without a Bill of Rights: Going Down the Drain with a Different Spin' (2015) 6 The Western Australian Jurist 1-32
Posted: 10 Apr 2016
Date Written: April 6, 2015
Interest in, and advocacy of, some version or other of originalist theories of constitutional interpretation is largely — perhaps overwhelmingly — an American concern. In my native Canada, ‘living tree’ or what Americans would call ‘living constitution’ interpretive approaches have vanquished all remnants of originalism when it comes to the top judges there interpreting Canada’s entrenched, constitutionalized Charter of Rights and Freedoms. And if originalism has little appeal in Canada it has basically none in the United Kingdom, in New Zealand, or in the decisions of the European Court of Human Rights in Strasbourg. Outside the US it is only in Australia that originalism still has a pulse. In fact I would say that Australia ranks second to the US in terms of originalism being a viable theory of constitutional interpretation with proponents in the courts, and in the law schools.
So that is one ground for looking to Australia when seeking answers to at least some of the disagreements between ‘living Constitution’ adherents and originalism adherents. Australia may, or may not, bolster some aspects of the originalist case. Another reason to look at Australia, and I will come back to this in a section below, is because Australia lacks any sort of a national bill of rights, constitutional or statutory. This absence might be surprising given that all other democracies today have some variant or other of a bill of rights instrument. Or it might also be surprising given that by far the biggest influence in drafting the 1901 Australian Constitution — the one that was most copied and mimicked — was the US constitution.
JEL Classification: K00
Suggested Citation: Suggested Citation