One Small Point About Originalism (Australia)
University of Queensland Law Journal 2009, July, 28, 1
University of Queensland Law Journal
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I THE IMPACT OF COLE V WHITFIELD For a long time, although in construing the Constitution the High Court had indirect recourse to what was said during the Convention Debates via the writings of Quick and Garran and others, it only rarely relied on direct access to them. Then in 1988, in Cole v Whitfield, (1) in defiance of 85 years of contrary practice and abruptly, without any attempted explanation or justification, the High Court adopted a new course. It favoured a type of 'originalism' which was partly restrictive and partly permissive. It was restrictive in that it forbad recourse to the Debates for the purpose of substituting for the meaning of the words used the scope and effect which the founding fathers subjectively intended. That is, it seemed to frown on that form of originalism known as 'intentionalism'. But it was permissive in that recourse was held allowable to the Debates and other historical materials for the purpose of identifying three things. One was the contemporary meaning of the language used. The second was the subject to which the language was directed. The third was the nature and objectives of the federation movement. There are of course still great debates about whether that approach is correct, or whether some purer originalism, or some more organic approach, should be adopted. And there is also a debate about whether what was said in Cole v Whitfield is not self-contradictory: for critics ask what the point is of examining the objectives of the federation movement unless one also examines the objectives and thus the intentions of its members. It is not today's task to analyse these debates.
- Category: Law
- Published: 01 July 2009
- Publisher: University of Queensland Press
- Print Length: 25 Pages
- Language: English