Rejoinder to Raban

AuthorScott Stephenson
Published date01 June 2020
Date01 June 2020
Subject MatterIn Focus: Interpretation (responding to papers in issue 48(1))
In Focus: Interpretation (responding to papers in issue 48(1))
Rejoinder to Raban
Scott Stephenson*
In his reply to my article, Professor Ofer Raban provides a number of insightful and important
points of disagreement with my argument against interpretation as an alternative to invalidation.
Thanks to Professor Raban for his careful engagement with my piece.
Several points of disagreement stem, I suggest, from the different perspectives we have about
constitutional design and practice. Professor Raban approaches the issue from an American per-
spective, while I approach it from a comparative perspective. Comparative constitutional law has
upended a number of assumptions about design and practice sometimes held in the US.
Professor Raban’s first, and principal, point of disagreement is that, in his view, interpretation is
‘clearly more modest’ than invalidation.
This argument is based on two claims: that an inter-
pretation ‘must remain consistent with the fundamental features of the statute’
while an invalida-
tion need not and that ‘it is much harder [for a legislature] to overcome a constitutional
invalidation’ than an interpretation of a statute.
With respect to the first claim, its significance as a point of distinction greatly diminishes when
examined from a comparative perspective. While the UK courts, for example, refrain from inter-
pretations that are inconsistent with a statute’s fundamental features, they are nevertheless able to
rectify most incompatibilities with rights using the power of interpretation. They rarely need to
resort to their alternative power—the declaration of incompatibility.
The power of interpretation
can be used in most situations because it is a far-reaching power, allowing courts ‘to depart from
the unambiguous meaning the legislation would otherwise bear’.
The UK’s experience suggests
few incompatibilities with rights affect a statute’s fundamental features. Further, there is nothing
stopping a constitutional designer from reducing or outright removing this limitation on the power
* Senior Lecturer, Melbourne Law School, The University of Melbourne. The author may be contacted at scott.
1. Ofer Raban, ‘Against Interpretation as an Alternative to Invalidation: A Response’ (2020) 48(2) Federal Law Review
272, 273.
2. Ibid 272.
3. Ibid 273.
4. For an overview of the small number of times a final declaration of incompatibility under s 4 of the Human Rights Act
1998 (UK) has been issued, see United Kingdom Ministry of Justice, Responding to Human Rights Judgments: Report to
the Joint Committee on Human Rights on the Government’s Response to Human Rights Judgments 2017–2018
(November 2018) 28.
5. Ghaidan v Godin-Mendoza [2004] 2AC 557, [30] (Lord Nicholls).
Federal Law Review
2020, Vol. 48(2) 276–278
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0067205X20906057

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