Some Reflections on ‘Constitutional Interpretation Wholly Unmoored from Constitutional Text’

Date01 June 2020
Published date01 June 2020
AuthorElisa Arcioni
Subject MatterIn Focus: Interpretation (responding to papers in issue 48(1))
In Focus: Interpretation (responding to papers in issue 48(1))
Some Reflections on
‘Constitutional Interpretation
Wholly Unmoored from
Constitutional Text’
Elisa Arcioni*
Allan’s contribution to the last issue of the Federal Law Review is a typically lively, provocative
and critical assessment of the High Court. His article can be read as a call for constitutional lawyers
and scholars to not be complacent in their assessment of the High Court and constantly to question
the legitimacy of moves by the Court in its jurisprudence. Allan focuses his attack on Brown v
Tasmania (‘Brown’)—a messy decision in which a majority of the Court invalidated some
Tasmanian provisions for breaching the implied freedom of political communication.
Allan identifies concerns with that case, especially the lack of direct reference to constitutional
text to support the ‘test’ applied to determine invalidity. There is obvious force in his criticism, but
it is not fatal to this area of law.
I Constitutional Meaning—Text and Intentions
Allan’s central claim is that the Court is manufacturing for itself grounds for invalidating federal
legislation that are not sufficiently authorised, according to Allan’s view of the content of
the Constitution. That relevant content—or meaning—is to come (only) from a consideration of
the text and the historical intentions of its authors. Allan takes the well-worn path of criticising the
Court for failing to be faithful to the text, and instead ‘discovering’ an implied restriction which
requires subjective judgements as to whether, and if so how, a statute breaches the restriction.
It is easy to reply to Allan in relation to him pointing to the lack of reference by the judges to
constitutional text. Allan contrasts the paucity of direct reference to sections of the Constitution to
the numerous references to previous cases of the Court regarding the implied freedom. Allan
suggests the Court is layering its own reasoning upon itself and failing to look to the ultimate
source of meaning—the Constitution. Yet those earlier cases do themselve s refer back to the
constitutional text as the foundation of their reasoning, so is the problem solved simply by
* Law School, University of Sydney. The author may be contacted at
1. Brown v Tasmania (2017) 261 CLR 328 (‘Brown’).
Federal Law Review
2020, Vol. 48(2) 279–281
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0067205X20906033

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