Is intentionalist theory indispensable to statutory interpretation

Abstract

The theory of intentionalism holds that the laws of statutes are determined by the enacting legislators’ subjective law-making intentions. The High Court has recently rejected the theory of intentionalism and, as such, has attracted criticisms from some of the theory’s most eminent proponents. One of these criticisms contends that, over the course of the 19th and 20th centuries, the truth of intentionalist theory formed a fundamental assumption upon which the existing framework of interpretive principles was constructed. As such, the criticism continues, the Court’s rejection of intentionalism today risks, at first, the loss of our ability to justify the existing framework of interpretive principles and, then inevitably, the collapse of that framework. In this article, I will attempt to defend the High Court’s position against this criticism. I will firstly argue that the criticism rests upon a false assumption: the assumption that Australia’s tradition of referring to ‘legislative intentions’ can be equated to a tradition of accepting intentionalist theory. I will secondly argue that the established methods of interpretation are able to be adequately accommodated and justified by a non-intentionalist theory, namely textualism, a theory that the High Court has adopted in all but name. The article concludes with reflections on the constitutional underpinnings of the Court’s interpretive approach, as described in Zheng v Cai.