Commendable Candour or Countermajoritarian Creativity?

[Michelle Whitehead ©2006]

Exploring the dynamic approach to statutory interpretation in Australia.

Abstract only.

Professor Eskridge's claim that his dynamic theory of statutory interpretation provides an accurate description of the actual practices of the judiciary remains largely untested in relation to the Australian High Court. Dynamic statutory interpretation incorporates statutory text, intent, and purpose in one coherent practice, which also acknowledges the influence of evolutive considerations - the way in which society's concerns and expectations have changed since the statute was enacted. Eskridge asserts that this entails a more honest awareness by the judiciary of the factors that actually influence their decision-making. In many cases, originalist methods will provide a satisfactory resolution of the dispute. It is only in hard cases where the judiciary must choose between competing, equally plausible interpretations that dynamic statutory interpretation comes into play. If dynamic statutory interpretation is the unacknowledged method underlying judicial practice, the dominant approach that Australian judges do acknowledge is purposive interpretation. Purposive interpretation involves a close study of the words of the legislation, in their context as part of the whole Act, in order to ascertain the purpose for which the statute was enacted. It was explicitly given Parliamentary approval in the Acts Interpretation Act 1901 (Cth). An analysis of extracurial writing by the High Court Bench, and of individual decisions in a recent hard case, suggest that the majority of the High Court use an amalgamation of the dynamic and purposive approaches to interpretation. By combining purposive and dynamic approaches, the judiciary remains sensitive both to the democratic importance of the legislature as the primary source of lawmaking authority, and to their own role as creative partners in the adaptation of fixed (and in many cases indeterminate) statutory rules to society's changing needs.