Constitutional Law Australia - Interpretations Essay

4007 Words Oct 21st, 2010 17 Pages
Constitutional Interpretation: Engineers’ Case and criticisms of Callinan J in the Workchoices’ Case.
By Mark Walker
Introduction

In the dissenting judgment made by Callinan J in the landmark New South Wales v Commonwealth (“Workchoices’ Case”), a strong criticism was mounted against constitutional interpretation methods employed in the judicial forum. Explicitly, this conjecture was focused at Isaacs J’s judgement in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”), where a textualism approach to constitutional interpretation was adopted. Callinan J expressed the Engineers’ Case as “less than satisfactory”, using “detached language” to discredit its literal methodology of interpreting the constitution.
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Such implied rights are only applicable if they are “plainly arising from the text of the Consititution, rather than assumptions upon which it is based, but which is does not express”. This supports a more recent trend to a purposive approach to interpretation of the constitution.

Summary of current position

The High Court of Australia is essentially focused towards textualism, however as it can be seen there has been a more current relaxation of the rule in recent years.

Textualism as the preferred methodology of interpretation

Although Callinan J in the Workchoices’ Case does not give full merit to these justifications, a textual approach to the interpretation of the constitution expressed in Engineers’ Case it not without its reasons. There are numerous considerations that need to be weighed when determining the appropriate methodology for constitutional interpretation. A major determining factor is the practicability of its legal application, and its ability to appropriately and fairly resolve issues entrenched in the text of the constitution. The following arguments provide a support for textualism, and a criticism of other methodologies.

Progression to textualism as a necessity

Through the progression of history the need for the principles articulated in Engineers’ Case was both necessary and appropriate. Callinan J in Workchoices’ Case made

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