o Locality? o Race and ethnicity? o Variability of sentence? o Civic death? Structuralism - Interpretation o Chs I, II, III – establishing certain institutions and giving rise to a certain political order, values, principles o E.g. Federal Parliament; the executive of a federal government o Structural implications – implications arising from the structure of the Constitution itself o Relationship and interdependence of text, of institutions o Laurence Tribe – ‘basic architecture’ o Topology o How the structure of the constitution gives rise to implications. o L Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation (1995) 108 Harvard Law Review 1221 o ‘Because the constitutional allocation of responsibility for these various actions is part of a larger framework of separated and divided powers, it is possible that changing any of these processes will upset the overall balance and thereby fundamentally alter the constitutional configuration.’ o How it establishes a structure of government. o Tribe: ‘it is often the case that, although there may be more than one linguistically possible interpretation of a constitutional provision, one of those possible interpretations may be the most plausible by a wide margin in light of structural considerations viewed against the backdrop of the history of the provision's adoption. …’ (1279)
o Tribe: “text and structure” as o “the pattern and interplay in the language of the Constitution itself”; and o “the pattern and interplay in the governmental edifice that the Constitution describes and creates, and in the institutions and practices it propels”. o Text and structure, two different things? o Q: how does elaborating an implication fit with the framers’ intentions? Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 136 Mason CJ: o ‘[I]t is difficult, if not impossible, to establish a foundation for the implication of general guarantees of fundamental rights and freedoms. To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted’ o But ACTV – implied protection of political speech, which rises from structure of the Constitution. But can’t imply BOR from this – expressly dismissed by the framers. Attempt to limit the scope of the Court’s holding. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 (Mason CJ, Toohey and Gaudron JJ): o [W]hat the framers of the Constitution thought, but did not provide in the Constitution, 100 years ago, is hardly a sure guide in the very different circumstances which prevail today … [W]hen the purpose of the implication is to protect the efficacious working of the system of representative government mandated by the Constitution, the freedom which is implied should be understood as being capable of extending to freedom from restraints imposed by law. … The beliefs of the founders at the end
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- Law, Separation of Powers, High Court of Australia, Commonwealth