‘Coherence’ in Australian Law: A Review of the High Court’s Approach

Presenter: Andrew Fell, PhD Candidate, TC Beirne School of Law

Title:  ‘Coherence’ in Australian Law: A Review of the High Court’s Approach

Abstract:  The concept of ‘coherence’ has, since the turn of the century, become a fundamental principle in Australian law. It has been relied on by the High Court in statutory and constitutional interpretation, but is mainly relevant in the development and application of the common law. However, the Court has not fully articulated its conception of ‘coherence’, and has said little about why it is important. Commentators have grappled with the Court’s approach, but it is not well-understood. This thesis will provide the first comprehensive explanation and evaluation of the High Court’s approach.  In doing so, it will draw on the significant body of academic literature relating to coherence in the law. Many prominent legal theorists, including Dworkin, MacCormick and Weinrib, have provided arguments in support of 'coherence', but the important differences between their particular conceptions often go unnoticed. There is therefore a range of possible conceptions, and it is necessary in evaluating the High Court's approach to determine whether it is relying on the correct one. Compounding this difficulty is the fact that the notion of coherence has been extensively criticised, which gives rise to the more fundamental question of whether the High Court should even rely on coherence at all. As well as providing guidance for legal decision-makers, answering these questions will resolve debates at the heart of legal and private law theory.