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.
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ItemProportionality and the proof of facts in Australian constitutional adjudication( 2018)This thesis examines the relationship between proportionality and facts in constitutional adjudication. The Australian High Court has developed various tests of constitutional validity that incorporate elements of the tripartite proportionality formula of suitability, necessity and balancing. Yet the scope and content of these tests, including the role of facts, remains uncertain. In addition, while the global spread of proportionality has attracted considerable academic attention, there has been little sustained analysis of the role of facts. In light of this, the thesis seeks to understand the extent to which factual inquiry matters in proportionality reasoning in Australia, both conceptually and in practice. Following this primary research question, the thesis considers how courts currently deal with facts in proportionality reasoning and, second, how an understanding of the nature and significance of facts might assist in the processes of fact-finding. The thesis answers these questions by analysing the conceptual structure of proportionality and the relevance of facts within each of the three stages. To understand the nature of these facts, it evaluates various taxonomies of fact that have been developed and considers how these might apply to proportionality reasoning. Building on this conceptual foundation, the thesis examines how proportionality has been applied by courts in practice. While the primary focus is on Australian constitutional adjudication, the thesis also draws on the experiences of Germany, Canada and South Africa. These comparative perspectives demonstrate how the link between proportionality and facts has been understood in practice, and potentially inform the application and development of proportionality reasoning in Australia. The thesis argues that facts are relevant to all three stages of proportionality reasoning but are likely to be most prominent at the necessity stage. The Australian and comparative jurisprudence illustrates, however, that there is variation in the extent to which questions of fact have been recognised in practice; courts do not always openly acknowledge the factual underpinnings of proportionality and there has been considerable judicial disagreement about whether evidence is necessary or appropriate to inform assessments of proportionality. It is argued, further, that in order to understand the significance of facts there is a need to distinguish more clearly between the types of empirical claims that arise at the different stages of proportionality analysis. While it is possible to draw on existing categorisations of fact that have been developed, such as legislative or constitutional facts, proportionality contains its own distinctive set of questions. It is therefore instructive to consider the facts that arise at each stage separately. The thesis concludes by considering the procedural implications that result from this contextual approach to facts.
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ItemKeeping courts judicial: chapter III of the Australian Constitution, the creation/determination distinction and preventative control order regimes( 2014)The meaning of the "judicial power of the Commonwealth" under Ch III of the Australian Constitution is both fiercely contested and constitutionally vital. The two limbed separation of judicial power under Ch III requires that only Ch III courts may exercise such power (the first limb of the separation), and that those courts may only exercise Commonwealth judicial power (the second limb). This thesis argues that one aspect of the definition of Commonwealth judicial power should be strengthened. Moreover, it argues that this strengthened approach will provide a means of challenging preventative control orders. In the first Part of the thesis, I argue that—as a matter of authority and principle—Ch III courts may only be empowered to determine and apply legal rules and norms; they cannot be empowered to create new legal standards. This principle is longstanding, but has come under attack in more recent times; its strength has also been said to have been eroded by various "exceptions" to the separation of judicial power. This thesis shows that creation/determination distinction retains much of its force. In doing so, I adopt a moderate approach to the question of determinacy, which emphasises that laws need only be sufficiently determinate for judicial application. The idea that there is a "spectrum of determinacy" also permits a more flexible approach to the application of the exceptions. In the second Part, I apply this reasoning to preventative control order laws. I show that the prohibition upon courts exercising non-judicial powers, taken together with the creation/determination distinction, may provide the best means of delimiting the validity of such laws. I use the cases of Thomas v Mowbray (2007) 233 CLR 307 and South Australia v Totani (2010) 238 CLR 1 to buttress my claims about the second limb in general, and the continued force and effect of the creation/determination distinction in particular. I then apply this reasoning to control order laws more generally, arguing for greater emphasis to be placed upon their second limb invalidity.
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ItemThe use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008( 2010)This thesis examines the Indonesian Constitutional Court's (MK) use of foreign and international sources of law in constitutional adjudication. Specifically, I seek to address three questions, each of which represent the main criticisms of the practice. First, is the MK's use of foreign materials in constitutional adjudication legitimate? Or is it undemocratic and an excessive exercise of the Court's judicial authority? Second, does the MK demonstrate a sufficient level of understanding of the contextual background from which the transnational principle derives, needed to evaluate whether the transplanted principle is suitable to the Indonesian context? Third, does the MK selectively use foreign materials only when the adopted principle supports an already identified position and ignores the sources that oppose the outcome sought by the Court? On the first question, the MK derives legitimacy from its adoption of a `universalist' interpretive theory. Under this approach, all courts are assumed to be identifying and interpreting the same set of constitutional norms thus providing the theoretical basis to use foreign materials to interpret those norms. However, the adoption of principles from transnational sources of law by the MK are generally not accompanied with clear reasons that justify why the principles it selects are relevant to the Indonesian context and why those it ignores are irrelevant. As a result, the Court does not demonstrate whether it has sufficient knowledge of the context from which the transplanted law derives. A lack of contextual knowledge gives rise to the risk that the court applying the laws may do so inappropriately or even incorrectly. The lack of transparency on the manner in which the foreign materials are selected; and quantitative evidence showing that the overwhelming majority of citations, in fact, did support the MK's decisions; exposes the Court to the third criticism, that it `cheery picks' foreign materials only when a supporting principle can be found to lend legitimacy to a preferred policy position or result.