The Honourable Murray Gleeson AC
legitimacy of the judicial power to interpret an Act of Parliament is sustained by the capacity of the Parliament to amend its own legislation, and, in the last resort, re-express its true will by clarifying or altering the language it has used. It is difficult to accuse judges of usurping legislative power in the exercise of statutory interpretation where, behind the entire process, there remains the power for the Parliament itself to correct what is claimed to be a misinterpretation.
Of course, the practical and political reality is that doubts about the meaning of statutes may arise because the problem that confronts a court is one on which there never was any relevant intention, perhaps because the problem was overlooked, or perhaps because it was politically inexpedient to deal with it clearly. Furthermore, issues of statutory construction may involve competing policy considerations such that it is politically difficult to reverse a judicial decision. Even so, if there is a question about what an Act of Parliament means, the ultimate authority and, therefore, the ultimate responsibility, is with Parliament. If Parliament has been misunderstood, it can correct the misunderstanding by exercising its power of amendment.
It should also be remembered that the power of Parliament to re-express a legislative purpose by amending an Act is unconfined by the range of choices that originally confronted a court. When a court faces a problem of interpretation, the range of possibilities logically available usually will be limited. The text, and the context, will control the competing choices. If Parliament comes to reconsider the matter, it is, at least in theory, capable of working out a clean slate. Of course, political and other realities may intrude, but at the level of constitutional power, making or amending an Act, and interpreting the Act, are functions of a different order. In considering the legitimacy of an exercise of
© The Honourable Murray Gleeson AC, Chief Justice of New South Wales 1988-1998, Chief Justice of Australia 1998-2008