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The Narrative Model of Constitutional Implications: A Defence of Roach v Electoral Commissioner


Jonathan Crowe

The role of implications in Australian constitutional law has long been debated. Jeffrey Goldsworthy has argued in a series of influential publications that legitimate constitutional implications must be derived in some way from authorial intentions. I call this the intentionalist model of constitutional implications. The intentionalist model has yielded a sceptical response to several recent High Court decisions, including the ruling in Roach v Electoral Commissioner that the Constitution enshrines an implied conditional guarantee of universal franchise. This article outlines an alternative way of thinking about constitutional implications, which I call the narrative model. I argue that at least some constitutional implications are best understood as arising from historically extended narratives about the relationship of the constitutional text to wider social practices and institutions. The article begins by discussing the limitations of the intentionalist model. It then considers the role of descriptive and normative implications in both factual and fictional narratives, before applying this analysis to the Australian Constitution. I argue that the narrative model offers a plausible basis for the High Court’s reasoning in Roach v Electoral Commissioner.

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(2019) 42(1) UNSWLJ 91: