Ever since its inception, one of the High Court’s primary duties has been to interpret the Australian Constitution. There have been many methodologies used to do so and many schools of thought (have been adopted by different judges) in approximately the last hundred years, but so far there still isn’t one consistent and cohesive way of interpretation . In this essay three types of options or methodologies that have been more commonly used by High Court judges will be discussed. They include: literalism/legalism, originalism and progressivism. Other options that may be considered by the High Court will also be examined in this paper.
Since the Engineers’ Case 1920, the Australian High Court has
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There have been a few approaches adopted by the High Court to preserve the effectiveness of the Constitution . The Constitution has been framed broadly and generally to extend its meaning when needed to accommodate technological advances , an example of this and the current standing of the High Court is the Grain Pool Case . In this case the High Court determined five general principals to be applied when a head of legislative power is concerned . These principals have also been used authoritatively in subsequent cases. It is important to extend the power that the Constitution has regarding certain area because of the continuous technological advances and as Higgins J affirmed as far back as 1908 in the Union Label Case, this is because the Constitution is not an ordinary Act but it is an Act that will assert what the law will be . In Cole v Whitfield it was recognised that to interpret the Constitution, understanding the context of the 1900 is important and can give us perception and it should be interpreted using contemporary meaning of the language . The issue with progressivism is the legitimacy of the judicial review. The Court should take great care in not having judicial review go above the Constitution itself because the Constitution regulates the use of power in the present and the future . It can be seen in more recent cases in the High Court that they are moving towards progressivisms or