Melbourne Law School - Theses
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ItemConstitutionally protective statutory interpretation( 2022)What does the Australian Constitution have to say about statutory interpretation? Is it irrelevant? Is the only constitutional norm that matters in statutory interpretation that which separates judicial and legislative power? Does the rule of law have any work to do? Might constitutional conceptions of sovereignty influence the way judges interpret statutes? What about federalism? These are the questions with which this thesis is concerned. The answers it gives reveal that the principles and practices of statutory interpretation are informed and constrained by systemic norms of the Australian legal system, the most important of which are traceable to our written Constitution. This thesis develops significantly the presently nascent suggestions that the separation of powers informs the practice of statutory interpretation. It shows a constitutional commitment to the rule of law that has bite, in contrast to the suggestions in more recent ‘pure’ constitutional law cases and commentary that the rule of law has no doctrinal force beyond the extent to which it is inscribed in the constitutional text and structure. Less flatteringly, but no less importantly, this view of Australian constitutional law reveals a number of points at which our constitutional culture remains retarded by its monarchical roots and colonial history. Finally, this thesis’ novel perspective allows us to see that federalism is alive and well in statutory interpretation, albeit that there are aspects of the federal principle that remain underenforced. The original contribution of this thesis is, then, to chart the relationship between the Constitution and the principles and practice of statutory interpretation – two fields of study that have to date rarely overlapped. While the thesis is intended primarily for a domestic audience, it also constitutes the first Australian contribution to the recent trend in international scholarship exploring the realm of ‘quasi-constitutional law’ at the penumbra of written constitutions.