free counters

The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Thursday, May 6, 2010

Chapter-15 Interpretation of constitution- Australian Authorities-part-12

Interpretation of Constitution

"The ordinary principles of statutory interpretation require that the text be the starting point of any interpretation of the Constitution. Part of the ordinary and natural meaning of the text is any implication which is 'manifested according to the accepted principles of interpretation'. Implications derived from the structure of the Constitution are also part of the Constitution's meaning but such implications may be drawn only when they are 'logically or practically necessary for the preservation of the integrity of that structure'. Thus, because the Constitution has prescribed a system for elections to the Houses of the federal Parliament, no Australian government can pass laws which would undermine the efficacy of that system[1]." "It is well settled, this Court declared in Cheatle v. The Queen[2] [1993] HCA 44; (1993) 177 CLR 541 at 552.), that the interpretation of a constitution such as ours is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of the common law's history. In the interpretation of the Constitution, judicial policy has no role to play. The Court, owing its existence and its jurisdiction ultimately to the Constitution, can do no more than interpret and apply its text, uncovering implications where they exist. The Court has no jurisdiction to fill in what might be thought to be lacunae left by the Constitution.

If there be a lacuna in the text, it can be filled, if at all, only by the common law or by another law which binds the courts and people of the Commonwealth and applies in all parts of Australia. Under the Constitution, this Court does not have nor can it be given nor, a fortiori, can it assume a power to attribute to the Constitution an operation which is not required by its text construed in the light of its history.[3], the common law and the circumstances or subject matter to which the text applies. The notion of "developing" the law of the Constitution is inconsistent with the judicial power it confers. Clearly the Court cannot change the Constitution, nor can it convert constitutional silence into a legal rule with constitutional force. I do not mean that, in changing conditions, the Constitution does not have a changing effect .[4] But, in the interpretation of the Constitution, judicial policy provides no leeway for judgment as it does when the Court is developing the common law. Nor can the Court find implications in the text by referring to extrinsic sources .[5]. The difference in curial function in declaring the common law and in interpreting the Constitution is important in the present case where the questions reserved for the opinion of this Court are questions of constitutional interpretation, not questions as to the state of the common law. The answers to these questions in no way depend on what the Court perceives to be desirable policy. The task is to expound the text of the Constitution: to ascertain what is implied in the text and to declare whether and in what manner the implication operates on the law of defamation.[6] The Constitution must be read as a whole, an instrument of government for a nation and its people, the Commonwealth of Australia.[7]"

[1] McGinty v Western Australia [1995] HCA 46; (1996) 186 CLR 140, 231 per MCHUGH J

[2]Cheatle v. The Queen ((75) [1993] HCA 44; (1993) 177 CLR 541 at 552

[3]Cole v. Whitfield (1988) 165 CLR 360 at 385

[4] The Commonwealth v. Tasmania (the Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 221.), that the denotation of its terms does not change ((82) R. v. Brislan; Ex parte Williams [1935] HCA 78; (1935) 54 CLR 262; Jones v. The Commonwealth (No.2) (1965) 112 CLR 206.), that the course of judicial interpretation does not reveal that a past constitutional doctrine is untenable ( (83) Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case") [1920] HCA 54; (1920) 28 CLR 129; Cole v. Whitfield) or that new situations do not reveal new doctrines inherent in the constitutional text ((84) Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR 1.). The Constitution speaks continually to the present and it operates in and upon contemporary conditions ((85) Fishwick v. Cleland [1960] HCA 55; (1960) 106 CLR 186 at 197; Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226 at 272.).

[5] Queensland Electricity Commission v. The Commonwealth [1985] HCA 56; (1985) 159 CLR 192 at 231; Nationwide News (1992) 177 CLR at 41-45; Australian Capital Television Pty. Ltd. v. The Commonwealth ("ACTV") [1992] HCA 45; (1992) 177 CLR 106 at 181-182.)

[6] Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; (1994) 124 ALR 1 (1994) Aust Torts Reports 81-297 (12 October 1994) ,HIGH COURT OF AUSTRALIA

[7][1965] HCA 66; (1965) 114 CLR 226 at 278 per WINDEYER J

No comments:

Post a Comment

Blog Archive