The separation of powers underpinning the Australian Federation can be stated in the simplest of patterns. Executive. Legislature. Judiciary. As formulated by Montesquieu in De l’Esprit des Loix: the legislature makes the law; the executive puts it into effect; the judiciary announces what the law is by the settlement of disputes. For the legal philosophers of the enlightenment, dealing as they were with perceived or actual transitions from monarchical despotism to republican freedom, liberty itself depended on the independence of the three arms of government; the King was the person entrusted with executive power, and the Parliament the body entrusted with the legislature.
Against this backdrop, the theoretical separation of constitutional law and statutory interpretation can leave one feeling rather bemused. Historians rarely attempt to interpret a text without first understanding what it is, where it comes from, and for what use it was intended. Lawyers, however, study and practice statutory interpretation with little or no reference to the Constitution, whilst textbooks and cases in constitutional law rarely identify connections with the principles of statutory interpretation.
The primary purpose of Julian Murphy’s new book, Constitutionally Protective Statutory Interpretation, is to systematically map out and relate the Australian Constitution to the principles and practice of statutory interpretation as implemented in Australia, elucidating three broad principles previously only suggested by constitutional scholars: that the separation of powers contained in the Australian Constitution informs the practice of statutory interpretation in Australia, that the rule of law still bites hard in the jurisprudence of Australia, and (rather more darkly) that the monarchical roots of the Australian Constitution lead to as yet unchallenged colonial fetters on our approach to its interpretation.
The opening words of its introduction frame this Holt Prize winning text for the reader. What does the Australian Constitution say about statutory interpretation? Is it irrelevant? Is the only constitutional norm that matters in statutory interpretation that which separates judicial and legislative power? Does the rule of law have any work to do? Might constitutional conceptions of sovereignty influence the way judges interpret statutes? What about federalism? These are questions that are rightly asked in the introduction, and Murphy offers accessible and satisfying answers.
A brief history in Chapter 1 concisely brings the non-expert reader up to date with the literature and jurisprudence of constitutional legal theory as it pertains to statutory interpretation, including a survey of terms used which is a necessary precursor to the deeper analysis of existing principles and practices of statutory interpretation in Chapter 2. This chapter, aptly titled ‘Framing the Intervention’ is a must-read for law students; Murphy, a skilled wordsmith, takes the reader on a journey from foundational questions, through the recondite, and into the abstruse in easy transitional stages.
Titled simply ‘Comparative Stimuli’, Chapter 3 offers the reader insight into juridical analysis from other constitutional democracies, most particularly the United Kingdom and the United States of America. Describing America as ‘an obvious place to look for potential assistance to better understanding the intersections of Australian constitutional law and statutory interpretation’, Murphy engages with the influence of American constitutional theology over the formation and interpretation of the Australian Constitution, an influence that has been pivotal in a number of recent High Court decisions. Noting briefly the ‘uncodified’ nature of the British constitution, he highlights the emphasis that Australian courts have placed on British principles of statutory interpretation, noting the extensive cross-jurisdictional citations in this area and drawing on Project Blue Sky to illustrate our continued reliance on ancient English authorities.
Murphy deals adeptly with the separation of powers in Chapter 4, concluding that ‘the principles and practices of statutory interpretation actively preserve and give effect to constitutional conceptions of the separated judicial, legislative and executive powers’. Chapter 5 is concerned with the rule of law both as a constitutional assumption and as it underpins the canons, drawing on specific constructional choices made by the Courts to illustrate the preference of the Australian judiciary for interpretations advancing the rule of law. The problem of sovereignty is surveyed in Chapter 6. As Murphy rightly identifies at the outset of the chapter, ‘sovereignty’ (when defined as the absolute right to govern) is a political theory sitting ill with constitutional law and practice but nevertheless is arguably ‘the ultimate fact by which a legal system exists’. The delicacy of Murphy’s approach to the Crown, Indigenous sovereignty, and republican statutory interpretation is impressive, as is his willingness to assess the implications for Australia of the most recent jurisprudence on what it means to be an indigenous Australian. His conclusion that there is a nascent recognition of Indigenous sovereignty in the courts demands further argument, as does his anticipation of a coming republic. The provocation to debate on these points is right, and timely, and the context appropriate.
Timely as well are the proposed canons of federalism discussed in Chapter 7, which open conversation about the federal structure of Australia and its impact on statutory interpretation. Federalism, the division and sharing of power between a national and state governments, poses specific jurisdictional problems many of which remain unsolved in Australia. Murphy proposes three new federalism-protective canons be deployed by lawyers when interpreting statutes. First, Murphy presses recognition of a presumption against federal interference in fields of traditional state concern, drawing heavily on American federalism canons protecting each of the United States from incursions into areas of traditional state lawmaking authority. Secondly, he draws on and extends the idea that ‘ambiguous federal statutes enacted pursuant to referred powers’ be construed narrowly to encompass circumstances in which they do not render state statutes inoperative but merely intrude into areas of state legislative activity. A canon of narrow construction of statutes pursuant to referred powers is of particular interest in Western Australia, a constitutionally distinctive state historically protective of its law-making authority. Finally Murphy seeks judicial recognition of a presumption of legislative non-interference with fundamental statutory rights enacted by another legislature within the Federation, building upon intra-jurisdictional principles and extending them.
Each of these ideas warrants conversation beyond the scope of the text or this review. The introduction of federalism canons in Australia resonates powerfully in the wake of the 2022 decision of the Supreme Court of the United States to abnegate its role in protecting reproductive liberties in Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). Australia has no counterpart to the constitutionally enshrined American Bill of Rights, and human rights laws tend to be far stronger at state than at federal level in Australia; Murphy’s third proposed canon openly seeks to protect state human rights legislation from federal incursion.
There is, as Murphy gracefully acknowledges in the closing chapter of the book, much to be worked out in the theory of constitutionally protective statutory interpretation. This text is foundational in the sense that it encapsulates many generations of research, theory, and authoritative writing in readily accessible summaries. It is provocative in its implications, the highest of which, from an administrative perspective, is the potential for putting certain fundamental principles of statutory interpretation beyond the power of the parliament to change; constitutionally required canons could not be legislatively altered.
Constitutionally Protective Statutory Interpretation is essential reading for all constitutional and administrative lawyers, and highly recommended reading for the balance of the legal profession in Australia.
