Against Interpretation as an Alternative to Invalidation

(2020) 48 Federal Law Review 46-68

U of Melbourne Legal Studies Research Paper No. 910

33 Pages Posted: 27 Mar 2020 Last revised: 27 Oct 2020

See all articles by Scott Stephenson

Scott Stephenson

University of Melbourne - Law School

Date Written: March 1, 2020

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

Suggested Citation

Stephenson, Scott, Against Interpretation as an Alternative to Invalidation (March 1, 2020). (2020) 48 Federal Law Review 46-68, U of Melbourne Legal Studies Research Paper No. 910, Available at SSRN: https://ssrn.com/abstract=3548006

Scott Stephenson (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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