Honours Thesis - Elodie Cheesman.pdf

100 another argument for original intent is that the

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100 Another argument for original intent is that the Constitution itself prescribes a method of change; if the contemporary landscape or values are so out of step with the 1900 meaning to warrant alteration, the appropriate course to hold a referendum. However, there are strong counter-arguments against reliance on s 128: a referendum can only be brought about by the Commonwealth; is arguably inappropriate for minority rights issues; and referendums have a poor record of success, often put down to the difficulties in fairly formulating the question to be put to the people. 101 Ultimately, the Constitution applies to a fundamentally different Australia from the one in the minds of the Framers and people at its conception. Like the Race Power s 51(xxvi) whose clearly racially discriminatory sentiments are no longer acceptable, the Marriage Power s 51(xxi) if interpreted in a strict originalist light bears an anachronistic pall deeply incongruous for a document which is intended to endure. Whilst one cannot dismiss the arguments for originalism, it is also important to consider non-originalist interpretive techniques. 97 See especially Goldsworthy, ‘Originalism in Constitutional Interpretation’ above n 42; Goldsworthy ‘Interpreting the Constitution in its Second Century’ above n 17; Kirk, above n 64; Leslie Zines, ‘Dead Hands or Living Tree? Stability and Change in Constitutional Law’ (2004) 25 Adelaide Law Review 3. 98 Kirk, above n 64, 326. Bork argues that ‘only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy’: Robert H Bork, The Tempting of America: The Political Seduction of the Law (Free Press, 1990), 143. 99 Kirk, above n 64, 327; Zines, The High Court and the Constitution , above n 42, ch 17. 100 Richard S Kay, ‘Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses’ (1988) 82 Northwestern University Law Review 226, 288. 101 Kirk, above n 64, 352-353.
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22 4 NON-ORIGINALISM The non-originalist interpretive approach is predicated on the Constitution being a document that is ‘intended to endure for ages to come, and adapt to various crises of human affairs’. 102 Thus, it is said that interpretation should take account of the ‘conditions, needs, practices, preferences, expectations and standards of modern times’, 103 and does not depend on the Framers’ intentions. 104 Such a dynamic or progressive interpretation, which compels the Court to the broader construction unless there is something to indicate otherwise, 105 would likely facilitate a reading of s 51(xxi) as giving Federal Parliament the power to legislate for same-sex marriage. 106 However, while policy concerns and questions of social consequence and morality will inevitably inform the constitutional interpretation, the High Court is unlikely to explicitly espouse non-originalism, as it is has been negatively associated with ‘judicial activism’.
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