Against Interpretation as an Alternative to Invalidation

Publication Date01 March 2020
AuthorScott Stephenson
Date01 March 2020
DOI10.1177/0067205X19890446
SubjectIn Focus: Interpretation
FLR890446 46..68 Article
Federal Law Review
2020, Vol. 48(1) 46–68
Against Interpretation
ª The Author(s) 2019
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as an Alternative to Invalidation
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DOI: 10.1177/0067205X19890446
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Scott Stephenson*
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 con-
frontational method of resolving rights issues. The article puts forward an argument for invali-
dation 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.
I Introduction
A widespread assumption about the constitutional mechanisms for protecting rights prevailed up
until the last decade of the 20th century. Courts that were tasked with ensuring legislative com-
pliance with rights had to be given the power to invalidate statutes that were found to be incom-
patible with rights. The power of invalidation was by no means the only power that had to be given
to courts (eg they could be empowered to issue damages to victims of rights violations), but it was
generally considered to be an essential part of the judiciary’s remedial toolkit. During the 1990s
and into the 2000s, this view began to change as constitutional reformers in New Zealand, the
United Kingdom and Australia drafted and secured the enactment of bills of rights that did not
permit courts to invalidate statutes for incompatibility with rights. Instead, the principal power
given to courts was the power to interpret statutes compatibly with rights. The power of inter-
pretation thus emerged as an alternative to the power of invalidation.
* Senior Lecturer, Melbourne Law School, The University of Melbourne. 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 (ICONS) 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. The author may be contacted at
scott.stephenson@unimelb.edu.au.

Stephenson
47
A parallel development occurred within the High Court of Australia’s case law on the protection
of rights during the same period. In the early 1990s, there was a relatively clear distinction between
the power of invalidation, which was used to enforce constitutional principles protective of rights
(eg freedom of political communication), and the power of interpretation, which was used to
enforce fundamental common law rights (ie the principle of legality). During the 1990s and into
the 2000s, this distinction began to dissolve as the Court started to employ the principle of legality
to avoid the need to consider the application of rights-protective constitutional principles by
construing statutes narrowly to reach a broadly similar rights-protective result. The power of
interpretation thus, once again, emerged as an alternative to the power of invalidation.
The aim of this article is to question the merits of this development by making the case against
interpretation as an alternative to invalidation as a method for judicially enforcing legislative
compliance with rights. It puts forward two lines of argument, each based in constitutional
theory. First, it argues that the case for interpretation over invalidation is not as strong as one
might think. A principal reason why interpretation has grown in popularity among constitutional
reformers and judges is that it offers a way of addressing the democratic concerns surrounding
the exercise of rights-based judicial review. These concerns centre on the ability of an unelected
arm of government to overturn the actions of an elected arm of government. Take away the
power of invalidation and these concerns disappear. The article suggests that this account of the
differences between interpretation and invalidation is too simplistic. The democratic concerns
that surround invalidation can be largely resolved through innovative devices such as legislative
override mechanisms. Furthermore, in its more expansive guises, interpretation can be just as
disruptive, if not more so, to the exercise of legislative power as invalidation. Some forms of the
power of interpretation, for example, allow courts to rewrite statutes to render them compatible
with rights. This form of the power allows the judiciary to directly implement its preferred
solution for rectifying a statute’s incompatibility with rights, a step that not even the power of
invalidation typically allows courts to take.
Second, it argues that invalidation is a more transparent, and therefore accountable, exercise of
public power than interpretation. In the context of rights, four aspects of the adjudicative process are
easier to identify with the power of invalidation. First, it is easier to identify the different stages of
analysis. The violation stage (ie is the statute incompatible with rights?) is prone to collapse into the
remedial stage (ie what should be done given that the statute is incompatible with rights?) with
interpretation because both stages require the same task (ie interpretation of the statute). Second, it is
easier to identify the controversies that surround the scope of the power. While the power of
invalidation gives rise to a set of discrete questions about its scope (eg when should a declaration
of invalidity commence? Which parts of the statutes should be declared invalid?), the same cannot be
said of the power of interpretation because its scope is primarily determined by two interlocking
questions that admit no bright-line answers. How ambiguous is the statute? What does the court need
to do to render the statute compatible with rights (eg choose between two ambiguous interpretations,
adopt a strained interpretation or rewrite the statute)? Third, it is easier to identify invocations of the
power (and invocations of the accompanying override power). While declarations of invalidity are
unmistakable, rights-compatible interpretations of statutes are liable to be missed because statutory
interpretation is a feature of every case. Acts of override may also be more difficult to identify with
the power of interpretation because a legislature can override by means of an amendment to the
statute, a quotidian legislative task, while the power of invalidity requires a distinctive act to be taken
(eg invocation of a notwithstanding clause). Fourth, it is easier to identify the state of the law after

48
Federal Law Review 48(1)
invocations of the power. While a declaration of invalidity makes the state of the law no more
difficult to identify than before the declaration, a strained interpretation or rewriting of a statute
makes the state of the law more difficult to identify than before the strained interpretation/rewrite.
A person will be actively misled by the plain and ordinary meaning of the statute because the strained
interpretation/rewrite sits at odds with that meaning.
The purpose of this article is not to suggest that the power of interpretation has no role to play in
ensuring legislative compliance with rights or even that there are no plausible reasons for prefer-
ring the power of interpretation over the power of invalidation. There may be, for example, sound
pragmatic reasons for constitutional reformers and sound institutional reasons for judges to prefer
the power of interpretation. Instead, the purpose is, first, to put the power of invalidation back on
the table in debates about rights reform in Australia and, second, to challenge proponents of the
power of interpretation to articulate in greater detail its advantages over the power of invalidation,
particularly from the perspective of constitutional theory.
This argument is developed in three principal parts. Part II traces the development of interpretation
as an alternative to invalidation among constitutional reformers and judges in Australia in the 1990s
and into the early 2000s. Part III puts forward the conventional argument for preferring interpretation
over invalidation. In addition to interpretation emerging as the preferred way of addressing the
democratic concerns over rights-based judicial review, it notes that interpretation also came to be
seen as a way of reducing the risk of confrontational encounters between the judicial and political arms
of government given that acts of interpretation are not as overt and provocative as acts of invalidation.
These reasons explain the rise in popularity of interpretation charted in Part II. Part IV puts forward the
case for...

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