THE LIMITS OF JUDICIAL POWER TO INTERPRET LEGISLATION

Abstract

This article reconsiders the limits of judicial power to interpret legislation. It is said that Australian courts have no power to choose the meaning of legislation. But that claim is inconsistent with other aspects of Australian constitutional law, and the standard account of vagueness. The article proposes two ways of reconciling this tension. The first is to rethink the scope of judicial power and recognise that courts have some authority to contribute to legislative content. The second is to rethink the scope of legislative power and recognise that there are some limits on the power of Australian Parliaments to enact vague laws. The article concludes that both are plausible, and that the most compelling resolution involves some element of each.

Keywords: Judicial power, Statutory interpretation, Constitutional law, Vagueness