Abstract This article reconsiders the method of constitutional interpretation employed by the Australian High Court, in light of the lack of formal amendments to the Australian Constitution. The Court eschews any power to change the meaning of the Constitution, including to keep pace with contemporary needs and values. That is in large part because section 128 of the Constitution vests power in the people and their representatives to change the Constitution – and thus it is said, it would be undemocratic for the Court to change the Constitution for them. But section 128 has fallen into desuetude: constitutional referendums are rare, and rarely succeed. This requires a reassessment of the values served by the interpretive method of the High Court, though this article concludes that this method remains normatively sound. It does serve democracy – though only in a thin sense of that term. More importantly, it preserves the institutional legitimacy of the High Court.
Lisa Burton Crawford (Wed,) studied this question.