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How Does the High Court Interpret the Constitution? A Qualitative Analysis between 2019–21


David Tan, Tamsin Phillipa Paige, Despina Hrambanis and Joseph Green

Theorists of legal interpretation often argue that their theory describes or fits well with legal practice without using empirical evidence to support such claims. In this article, we provide a proof of concept for how such claims can be established using Critical Discourse Analysis – a qualitative method of coding texts – as applied to High Court decisions. Particularly, we assess whether a slightly modified version of Philip Bobbitt’s theory of constitutional modalities can be used to describe Australian constitutional interpretation working backwards from the start date of the project in August 2021. We find that Bobbitt’s modalities were used by High Court judges in the period studied. Predominantly, the High Court used the doctrinal modality supplemented strongly by textual and structural modalities. The ubiquitous use of doctrine to interpret the Australian Constitution in the period studied suggests a need for a greater understanding of doctrine as an interpretive modality.

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2024 47(1) UNSWLJ 177: