Interpretation In Australia Research Articles

Constitutionally Conforming Interpretation in Australia

Constitutionally Conforming Interpretation in Australia

Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?

In this article, the author argues that certain types of constitutional interpretation in Australia have become far too unmoored from the written constitutional text and its intended meaning, the reductio ad absurdum of such unmoored general approaches being the recent High Court of Australia case Brown. The author therefore asserts that there is a serious problem with some types of constitutional interpretation in Australia that have evolved to a point where we can observe few if any outside constraints on the outcomes available to top judges. The author finishes, briefly, by considering what can be done about this state of affairs.

Executive detention as a site for creative constitutional interpretation in Australia

The Australian High Court’s ‘Lim principle’ – that punitive detention must remain an exclusively judicial function – has evolved through phases that have confined it narrowly and then, more recently, reinvigorated it with new scope and potential. In inhospitable constitutional terrain, the evolution of these restrictions on executive detention should be viewed as an achievement, rather than a failure of law to protect the most powerless of constitutional others. Recent developments, considered here, indicate that the protection could be further strengthened and expanded, whilst also undermining any suggestion that the Court is directly amenable to populist pressure.

In the Shadow of Anzac: Labour Historiography of the First World War in Australia

AbstractAustralia is by far the most enthusiastic and profligate commemorator of the centenary of the First World War; a phenomenon that is closely connected to the fact that the war produced Australia's premier national myth, the Anzac legend. The dominance of the nationalist interpretation in Australia has masked important aspects of the war, such as the experience of the working class. This article reviews Australian labour historiography of the First World War. It argues that the dominance of the Anzac legend muted the generation of labour historians born during the inter‐war years, who were under its nationalist thrall. More recent labour historians employ cultural methodologies, often in an attempt to counter the ubiquity of nationalist memory of the First World War in Australia.

A Recent Development in Statutory and Constitutional Interpretation in Australia

Stephen Sedley in 2012 criticized the two-step approach of interpretation-as-ascertainment followed by interpretation-as-construction found in accounts of interpretation and says, 'I believe this to be a false dichotomy. You cannot ascertain the meaning of words except in relation to known or supposed facts.' Entirely consistent with that view, I have developed a particular theory for the judicial interpretation of statutes founded on philosophical and practical grounds. The theory is of an interpretive process, which I call concurrent interpretation and Australian judges call characterization: the meaning of statutory words is realized in application of the words to the facts of a case, in the task of resolving the particular conflict before the court.I call the alternative theory prospective interpretation: the attempt to give authoritative meaning to a rule in advance of application, an approach consistent with interpretation-as-ascertainment followed by interpretation-as-construction.I first summarize matters fundamental to statutory interpretation before describing, and distinguishing between, concurrent and prospective interpretation. I explain why the distinction matters. I introduce some philosophy, especially with regard to the nature of legal rules and norms. I discuss the interpretative process.I come to the development referred to in the title of this lecture and discuss how current judicial practice, most candidly expressed in the High Court of Australia, underpins my approach. I conclude with suggested consequences of my approach.

Contracting for ‘Contextualism’ – How can parties influence the interpretation method applied to their agreement?

Since the High Court refusal of leave to appeal against the New South Wales Court of Appeal in Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604, there has been much debate as to whether the identification of ambiguity is a pre-requisite to the admission of extrinsic evidence of surrounding circumstances and the commercial purpose of the contract in contract interpretation in Australia. And indeed, if it is, whether it should be. However, very little attention has been paid to the question of whether, and how, contracting parties might influence the interpretation method applied to their agreement. In her article, Catherine Mitchell argues how parties may use an entire agreement clause to evidence the parties’ intention that they do not wish for the background circumstances to be taken into account. This article considers the converse, that is, how the parties, at the time of drafting their contracts, may direct a court to look at context. It concludes that there are good reasons for directing the court to look at context and allows contracting parties to take control at a time when the interpretation rules are very uncertain.

Heresy in the High Court? Federalism as a Constraint on Commonwealth Power

Williams v Commonwealth of Australia is a landmark decision of the High Court on the scope of federal executive power in s 61 of the Constitution. The decision is also important for the interpretive methodology adopted by the Court. Notably, each judge based their understanding of s 61 upon federal readings of the Constitution. This methodology raises fresh questions about how the Constitution is to be interpreted, and whether Williams marks a break from orthodox understandings of that task. This article assesses the significance of Williams for constitutional interpretation in Australia, and whether it lays the foundation for a more robust protection of state interests by the High Court.

Heresy in the High Court? Federalism as a Constraint on Commonwealth Power

Williams v Commonwealth of Australia is a landmark decision of the High Court on the scope of federal executive power in s 61 of the Constitution. The decision is also important for the interpretive methodology adopted by the Court. Notably, each judge based their understanding of s 61 upon federal readings of the Constitution. This methodology raises fresh questions about how the Constitution is to be interpreted, and whether Williams marks a break from orthodox understandings of that task. This article assesses the significance of Williams for constitutional interpretation in Australia, and whether it lays the foundation for a more robust protection of state interests by the High Court.

Intention, Meaning and the Case for Reform of Contractual Interpretation in Australia

Australian contracts are construed according to a literal interpretation of their words. Even if that interpretation is unfair or contrary to the mutual, communicated intent of the parties, the literal interpretation must prevail unless the words in the contract are ambiguous or susceptible to more than one meaning. This position has recently been affirmed by the High Court in Western Export Services v Jireh [2011] HCA 45. This article argues that this position is unsatisfactory having regard to the High Court’s own approach to statutory interpretation, developments in contractual interpretation in England and interpretative theories developed in linguistic philosophy about the importance of intention to the derivation of meaning. These approaches demonstrate that the preferable approach is to eschew unnecessarily restrictive rules to contractual interpretation and permit evidence that will assist the court to most effectively administer the task at hand: ascertaining a contract’s true meaning.

Empirical support for the reliability of DNA evidence interpretation in Australia and New Zealand

The results of empirical testing of forensic DNA probabilities for Australian and New Zealand populations is reported. It is concluded that if consideration is given to relatedness and subpopulation effects, the current model used in most of Australia and New Zealand appears to give very good predictions.

Interpretation in Australia

Le présent article commence par un aperçu de l’interprétation en Australie, de ses débuts, dans le contexte colonial de la seconde moitié du 18e siècle, à nos jours. L’auteur retrace les défis et écueils qu’elle a rencontrés sur son parcours depuis son arrivée à la fin des années 70, pour ensuite décrire sa situation actuelle. Les autres thèmes abordés sont le soustitrage, la profession d’interprète expert auprès des tribunaux, ainsi que d’autres sujets pertinents tels que les rapports entre interprétation et traduction, le droit, le rôle de l’interprète juridique, la normalisation, les contrats, le manque de reconnaissance dont souffre aujourd’hui encore l’interprétation dans le pays en tant que profession libérale et enfin quelques expressions spécifiquement australiennes recueillies sur le vif auprès de politiciens et délégués australiens.

Guidelines for Interpretation in Australia

Guidelines for Interpretation in Australia

Constitutional Interpretation in Australia

Constitutional Interpretation in Australia