The transparent use of history in Australian constitutional interpretation: The banking power as a case study

Abstract

In the last twenty five years the use of history has become a significant feature of the constitutional interpretive approach of the High Court. Despite the prevalence of this method, members of the High Court, with a few notable exceptions, have yet to address the internal theoretical structure of how history can be used, or the relationship between history and other recognised interpretive methodologies.

This thesis examines the various perspectives relating to how the body of knowledge known as history can be employed in constitutional interpretation, and the conceptual relationships between history and other differing modes of constitutional interpretation. This thesis is not arguing that history alone can produce complete transparency and harmony within the interpretive jurisprudence of the High Court. Rather what is submitted is that broader and richer notions of history can move the jurisprudence of the High Court towards greater conceptual stability and at the same time improve the constitutional decision making of the High Court by enhancing the transparency of the reasoning process.

The banking power case study supports these conclusions whilst also examining one of the least explored parts of the Australian Constitution.

When dissected, the notion of history is capable of providing a common perspective and common language that can mediate across methodologies without necessarily crowding out those alternative perspectives. The diversity of views encompassed within the notion of history present a kind of symmetry when coupled with the variety of methodologies amongst which history is but one approach. From this perspective the paradigm of history emerges as the focal point for all constitutional interpretive discourses.

This thesis strengthens the existing literature supporting the use of history in constitutional interpretation by deepening and enriching the study of how history can be used, and placing history in a central position amongst alternative modes of constitutional interpretation.