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Against Interpretation as an Alternative to Invalidation

Published online by Cambridge University Press:  01 January 2025

Scott Stephenson
Scott Stephenson*
Affiliation:
Melbourne Law School, The University of Melbourne
*
The author may be contacted at scott.stephenson@unimelb.edu.au.
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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.

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Articles
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Federal Law Review , Volume 48 , Issue 1 , March 2020 , pp. 46 - 68
Copyright
Copyright © 2019 The Author(s)

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Footnotes

Thanks to Farrah Ahmed, Lisa Burton Crawford, Michael Crommelin, Rosalind Dixon, Tom Hickey, Aileen Kavanagh, Dan Meagher, Stijn Smet, Lulu Weis and the article’s referees for their exceptionally helpful comments and suggestions. An earlier version of this article was presented at the International Society of Public Law (ICON•S) 2018 Conference, The University of Hong Kong, Hong Kong, 25 June 2018, and the Public Law Conference, The University of Melbourne, Melbourne, 12 July 2018.

References

1. Constitutional Commission (Australia), Final Report of the Constitutional Commission (June 1988) 447 [9.12] (‘Final Report of the Constitutional Commission’).

2. Ibid 467 [9.99].

3. Ibid 447 [9.12].

4. Ibid 492 [9.210].

5. Ibid 467 [9.99].

6. Australian Constitution s 128.

7. ‘One of the most important functions of constitutional guarantees of rights and freedoms is to place limits on the kinds of laws the legislators can make’: Final Report of the Constitutional Commission (n 1) 468 [9.103].

8. Ibid 468 [9.104].

9. Ibid 447 [9.16].

10. For an overview of the history of the Act, see Paul Rishworth, ‘The Birth and Rebirth of the Bill of Rights’ in Grant Huscroft and Paul Rishworth (eds), Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (Brooker’s, 1995) 1.

11. The government’s reasons for adopting the model were set out in a white paper that accompanied the introduction of the proposed bill of rights into Parliament: Secretary of State for the Home Department (UK), Rights Brought Home: The Human Rights Bill, Cmd 3782 (1997) (‘Rights Brought Home’).

12. [2004] 2 AC 557 (‘Ghaidan’).

13. Ibid 574 [44].

14. Ibid 571 [30].

15. Ibid 571−2 [32].

16. Ibid 600 [119].

17. As Aileen Kavanagh argues, the UK’s experience shows us that the power of interpretation can be as strong as, if not stronger than, the power of invalidation: Aileen Kavanagh, ‘What’s So Weak About “Weak-Form Review”? The Case of the UK Human Rights Act 1998’ (2015) 13(4) International Journal of Constitutional Law 1008. For a similar observation in the US context, see Frederick Schauer, ‘Ashwander Revisited’ [1995] Supreme Court Review 71, 94–5.

18. Ghaidan (n 12) 572 [33].

19. Ibid 600–1 [121].

20. Australian Capital Territory Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (May 2003) 54 [3.50] (‘Towards an ACT Human Rights Act’).

21. Ibid 61–2 [4.5].

22. Ibid 65 [4.24].

23. Ibid 66–7 [4.29].

24. Victorian Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2006) 20–1 [1.3.2] (‘Rights, Responsibilities and Respect’).

25. In Victoria, it is called ‘a declaration of inconsistent interpretation’: Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36.

26. Ghaidan (n 12).

27. Rights, Responsibilities and Respect (n 24) 82–4 [4.5.1].

28. National Human Rights Consultation Committee (Australia), Report (September 2009) 383 (‘National Human Rights Committee Report’).

29. Ibid 370–1.

30. Ibid 371–2.

31. Ibid 372.

32. See Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

33. The Explanatory Notes to the Human Rights Bill 2018 (Qld) states that ‘the emphasis on giving effect to the legislative purpose means that the provision does not authorise a court to depart from Parliament’s intention’: Explanatory Notes, Human Rights Bill 2018 (Qld) 30.

34. Momcilovic v The Queen (2011) 245 CLR 1.

35. Interpretation has not, however, ever been entirely absent from the constitutional side of the equation. Courts have always, for example, faced difficult decisions regarding the choice between adopting a strained interpretation of a statute to preserve its constitutional validity and declaring the statute constitutionally invalid: see, eg, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [76] (Gageler J) (‘NAAJA’). For a discussion of this issue in the US context, see below n 99.

36. For an overview of the developments during this period, see Leslie Zines, ‘A Judicially Created Bill of Rights?’ (1994) 16 Sydney Law Review 166.

37. (1992) 177 CLR 106.

38. (1992) 177 CLR 1.

39. Re Bolton; Ex parte Beane (1987) 162 CLR 514; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427.

40. Dan Meagher, ‘The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under’ (2016) 42 Brooklyn Journal of International Law 65, 91 (‘The Principle of Legality’); Brendan Lim, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372, 389–90.

41. (1994) 179 CLR 427, 437–8.

42. The principle of legality was, however, sometimes described in constitutional terms during this period: Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523 (Brennan J).

43. (2003) 211 CLR 476 (‘Plaintiff S157’).

44. Ibid, citing Migration Act 1958 (Cth) s 474(1).

45. Ibid 482, citing Australian Constitution s 75(v).

46. Ibid 491–2 [27], 492 [30] (Gleeson CJ).

47. (2004) 219 CLR 562, 578 [22] (Gleeson CJ), 608 [122] (Gummow J), 614–15 [144] (Kirby J) (‘Al-Kateb’).

48. Ibid 577 [19] (Gleeson CJ), 616–17 [150] (Kirby J).

49. NAAJA (n 35).

50. Ibid 581–2 [11].

51. (2008) 168 FCR 576.

52. Ibid 592–6 [68]–[78].

53. See also Dan Meagher, ‘Legality’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 1084; Dan Meagher, ‘The “Modern Approach” to Statutory Interpretation and the Principle of Legality: An Issue of Coherence?’ (2018) 46(3) Federal Law Review 397, 421–5 (‘The “Modern Approach” to Statutory Interpretation’).

54. (2004) 221 CLR 309, 329 [21], citing R v Home Secretary; Ex parte Pierson [1998] AC 539, 587, 589 (Lord Steyn).

55. Ibid 329 [21].

56. Robert French, ‘Protecting Human Rights Without a Bill of Rights’ (Speech, John Marshall Law School, 26 January 2010) 30 <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj26jan10.pdf>.

57. (2011) 245 CLR 1, 47 [45], quoting TRS Allan, ‘The Common Law as Constitution: Fundamental Rights and First Principles’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (The Federation Press, 1996) 146, 148.

58. (2009) 239 CLR 446, 455–6 [28], citing NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298, 410–12. See also Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan and Bell JJ).

59. See, eg, Roach v Electoral Commissioner (2007) 233 CLR 162; Rowe v Electoral Commissioner (2010) 243 CLR 1.

60. French (n 56) 34. For a discussion of the precise extent to which the principle of legality allows courts to depart from the meaning of the statute communicated by its text, see Meagher, ‘The “Modern Approach” to Statutory Interpretation’ (n 53) 416.

61. That, of course, raises the questions of which common law rights are ‘fundamental’. For a discussion of the work performed by the adjective ‘fundamental’ in the principle of legality, see Lim (n 40) 386–9.

62. See, eg, Meagher, ‘The Principle of Legality’ (n 40) 107–8.

63. See, eg, Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115(6) Yale Law Journal 1346.

64. Ibid 1354.

65. See, eg, Jeffrey Goldsworthy, ‘Judicial Review, Legislative Override, and Democracy’ (2003) 38(2) Wake Forest Law Review 451.

66. Towards an ACT Human Rights Act (n 20) 43 [3.4].

67. Ibid 54 [3.50].

68. Rights, Responsibilities and Respect (n 24) 20–1 [1.3.2].

69. National Human Rights Committee Report (n 28) 296.

70. See, eg, Tanya Josev, The Campaign Against the Courts: A History of the Judicial Activism Debate (Federation Press, 2017) ch 5.

71. Ibid.

72. Potter v Minahan (1908) 7 CLR 277, 303–5 (O’Connor J).

73. Josev (n 70) chs 4–5.

74. Rosalind Dixon, ‘A Minimalist Charter of Rights for Australia: The UK or Canada as a Model?’ (2009) 37(3) Federal Law Review 335, 337.

75. In practice, the difference between invalidation and interpretation may be diminished if, for example, in a system with the power of invalidation, courts accompany their declarations of invalidity with statements setting out the solution for addressing the incompatibility with rights that they would be prepared to accept to declare the statutes valid.

76. Rosalind Dixon and Adrienne Stone, ‘Constitutional Amendment and Political Constitutionalism: A Philosophical and Comparative Reflection’ in David Dyzenhaus and Malcolm Thorburn (eds), Philosophical Foundations of Constitutional Law (Oxford University Press, 2016) 95.

77. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 31.

78. The four-year review of the Act, for example, recommended the repeal of the override provision: Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Charter of Human Rights and Responsibilities Act 2006 (No 69 Session 2010–11, 19 April 2011) 100.

79. See, eg, Towards an ACT Human Rights Act (n 20) 52 [3.41]; Rights, Responsibilities and Respect (n 24) 162; National Human Rights Committee Report (n 28) 383.

80. Rights Brought Home (n 11) [2.13].

81. See, eg, National Human Rights Committee Report (n 28) 383.

82. See, eg, Rights, Responsibilities and Respect (n 24) 84–5 [4.5.2].

83. On the question of what counts as a minimalist bill of rights, see also Dixon (n 74).

84. There are, of course, other steps such as determining the facts of the case.

85. Plaintiff S157 (n 43) 492 [30].

86. Al-Kateb (n 47) 577 [19] (Gleeson CJ), 616–17 [150] (Kirby J).

87. NAAJA (n 35) 587–8 [23]–[24].

88. Plaintiff S157 (n 43) 506 [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), citing Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614–15 [51] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646–7 [152] (Hayne J).

89. NAAJA (n 35) 591 [34].

90. Ibid 605 [80].

91. See, eg, Mark Tushnet, ‘Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty’ (1995) 94(2) Michigan Law Review 245.

92. One assumption of this argument is that the statute (or part thereof) that is declared invalid does not remain on the statute books.

93. (2009) 240 CLR 319, 349 [42].

94. NAAJA (n 35) 604–5 [77].

95. NAAJA (n 35) is an example of a situation where a court faced a choice between resolving the case by means of interpretation, as French CJ, Kiefel and Bell JJ did, or by means of invalidation, as Gageler J would have.

96. See, eg, Schauer (n 17); Richard L Hasen, ‘Constitutional Avoidance and Anti-Avoidance by the Roberts Court’ [2009] Supreme Court Review 181; Anthony Vitarelli, ‘Constitutional Avoidance Step Zero’ (2010) 119(4) Yale Law Journal 837; Eric S Fish, ‘Constitutional Avoidance as Interpretation and as Remedy’ (2016) 114(7) Michigan Law Review 1275.

97. For an overview of these developments, see Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press, 2013); Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism (Federation Press, 2016).