The Role of Parliament in Constitutional Interpretation

In the forthcoming edition of the Melbourne University Law Review (Volume 37(2)) Dr Gabrielle Appleby and Adam Webster examine the role of Parliament in constitutional interpretation. The following is the abstract of the article:

In Australia, the role of interpreting the Constitution is ultimately for the High Court, but some ‘space’ remains for its interpretation by the Parliament. Space exists in rare cases where the Court defers to the judgment of Parliament or where a non-justiciable question arises. In these cases, Parliament must consider constitutionality without assistance from the courts: ‘parliament-centred interpretation’. In the predominance of cases, while the final word on constitutional interpretation remains with the courts, we argue that ‘best practice’ requires individual parliamentarians to consider the constitutionality of Bills using ‘court-centred interpretation’. We demonstrate our argument using two case studies: the proposed amendments to the Marriage Act 1961 (Cth) to allow for same-sex marriage, and the passage of legislation following Williams v Commonwealth.

An advanced copy of the article can be accessed here.

Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School. Adam Webster is a PhD candidate at the Adelaide Law School.

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