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Popular Sovereignty and Constitutional Continuity

Published online by Cambridge University Press:  24 January 2025

George Winterton
George Winterton*
Affiliation:
University of New South Wales
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Extract

Australian constitutionalism appears to be in turmoil. Ever since the Free Speech cases of 1992, commentators have been telling us that constitutionally we have undergone a “glorious revolution” and that Australian constitutionalism has experienced a “fundamental paradigm shift” from parliamentary to popular sovereignty. They have remarked on the “inadequacy of our constitutional theory of government” and urged us to acknowledge “a new foundation on which, step by step, our constitutional jurisprudence will need to be rethought.” This would include a new theory of judicial review.

Some of this hyperbole can be attributed to youthful exuberance and, for older enthusiasts, to the allure of novelty. All are excited by the prospect of implied constitutional rights. The constitutionally “frozen continent” admittedly presented a fertile field for those commentators who have complained of our “impoverished constitutional culture”, bemoaned the absence of “an underrmg [constitutional] philosophy or vision” or even “an overall framework”, and queried the appropriateness of our existing “constitutional concepts, ideals and values ... to the Australia of the late twentieth century”. Our constitutional framers have even been criticised for adopting features of the United States Constitution only “at a secondary machinery level” but “nothing of [its] spirit”; or, as another commentator put it, “drawing on its most conservative, least inspiring features — jettisoning the rest”. The original United States Constitution’s solicitude for slavery was presumably overlooked.

Type
Research Article
Information
Federal Law Review , Volume 26 , Issue 1 , March 1998 , pp. 1 - 13
Copyright
Copyright © 1998 The Australian National University

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Footnotes

An earlier version of this article appeared in C Sampford and C-A Bois (eds), Sir Zelman Cowen: A Life In the Law (1997). The comments of Arthur Glass and Nicholas Aroney are gratefully acknowledged.

References

1 Australian Capital Television Pty Ltd v Commonwealth (ACTV) (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.

2 Fitzgerald, B, “Proportionality and Australian Constitutionalism” (1993) 12 U Tas L Rev 263 at 285Google Scholar. See also McDonald, L, “The Denizens of Democracy: The High Court and the 'Free Speech' Cases” (1994) 5 PLR 160 at 177Google Scholar (a “revolutionary change to traditional legal theory”).

3 AR Blackshield, “The Implied Freedom of Communication”, in Lindell, G (ed), Future Directions in Australian Constitutional Law (1994) 232 at 235Google Scholar. See also ibid at 232, 242; L McDonald, above n 2 at 161 (“a 'switch in time' in constitutional theory”), 162 (“a paradigm shift in the fundamental principles which inform constitutional interpretation”),

4 Finn, P, “A Sovereign People, A Public Trust”, in Finn, PD (ed), Essays on Law and Government: Volume 1: Principles and Value (1995) 11 at 13Google Scholar.

5 A R Blackshield, above n 3 at 242.

6 L McDonald, above n 2 at 174, 186. For the author's efforts in that direction, see ibid at 190,192.

7 See Sawer, G, Australian Federalism in the Courts (1967) at 208Google Scholar.

8 Galligan, B, “Realistic 'Realism' and the High Court's Political Role” (1989) 18 FL Rev 40 at 47Google Scholar.

9 Saunders, C, “The Constitutional Framework: Hybrid, Derivative but Eventually Australian”, in Power, J (ed), Public Administration in Australia: A Watershed (1990) 106 at 130Google Scholar.

10 Ibid.

11 Sampford, C, “The Need for Australian Constitutional Theory” (1994) 3 Griffith L Rev 268 at 268Google Scholar.

12 Howard, C, “The Land of the Free and the Prison Abroad”, Times on Sunday12 July 1987 at 15Google Scholar.

13 McLachlan, N, Waiting for the Revolution: A History of Australian Nationalism (1989) at 168Google Scholar.

14 See United States Constitution, art I§ 9(1), art IV§ 2(3). See also art I § 2(3).

15 See, eg,Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 (desirable and convenient a unanimous joint judgment on political defamation may be, but who could have predicted that five justices - Brennan CJ, Dawson, McHugh, Toohey and Gaudron JJ- would abandon previously held views?); Langer v Commonwealth (1996) 186 CLR 302, which in the writer's opinion is difficult to reconcile withACTV (1992) 177 CLR 106, as Dawson J (dissenting) noted in Langer: 186 CLR at 326-327. See also G Winterton, “Free Speech Rights and Voting Wrongs”,Age 23 February 1996 at A 15.

16 See, especially, Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577; Leeth v Comonwealth (1992)174 CLR 455 per Brennan, Deane, Toohey and Gaudron JJ.(Although,

17 See Winterton, G, “Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?”, in Sampford, C and Preston, K (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 121 at 145Google Scholar.

18 See Lindell, G, “Recent Developments in the Judicial Interpretation of the Australian Constitution”, in Lindell, G (ed), Future Directions in Australian Constitutional Law (1994) 1 at 38-39Google Scholar.

19 Toohey, J, “A Government of Laws, and Not of Men?” (1993) 4 PLR158 at 166-170Google Scholar; Doyle, J,“Constitutional Law: 'At the Eye of the Storm"' (1993) 23 UWAL Rev 15 at 29Google Scholar.

20 See A Mason,Human Rights and Australian Judges (Law and Policy Paper No 3, Centre for International and Public Law,ANU,1996) at 11.

21 G Billias, Book Review (1993) 50 William & Mary Quarterly189 at 189.

22 In the United States, the transformation coincided with a more liberal interpretation of federal legislative power and denial of relief on the ground of economic substantive due process, leaving the Supreme Court needing a new role: see United States v Carolene Products Co304 US 144 at 152-153 n 4 (1938);H Wechsler, “Stone and the Constitution”(1946)46Columbia L Rev764 at 793; L Pfeffer,This Honorable Court: A History of the United States Supreme Court (1965)at 340-342. Similar influences may have been at work in Australia: see G Lindell, above n 18 at 39.

23 See G Lindell, “Why is Australia's Constitution Binding? -The Reasons in 1900 and Now,and the Effect of Independence” (1986) 16FL Rev29 at 37 and 49. See also L Zines, quoted n 42 below. For pre-Australia Act recognition of popular sovereignty, see Winterton, G, Monarchy to Republic: Australian Republican Government (1986) at 24Google Scholar;Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 at 442 per Deane J: “[W]hatever be the theoretical explanation, ultimate authority in this country lies with the Australian people”; at 383 per Murphy J: “The authority for the Australian Constitution [in 1901] and now is its acceptance by the Australian people”; but contrastBistricic v Rokov (1976) 135 CLR 552 at 566 per Murphy J: “The original authority for our Constitution was the United Kingdom Parliament, but the existing authority is its continuing acceptance by the Australian people”.

24 Nationwide News (1992) 177 CLR 1 at 72 (emphasis added), essentially repeated by Deane J inTheophanous v Herald& Weekly Times Ltd (1994) 182 CLR 104 at 180, and impliedly adopted by Toohey JinMcGinty v Western Australia (McGinty) (1996) 186 CLR 140 at 201. For an earlier comment to this effect, seeBreavington v Godleman (1988) 169 CLR 41 at 123 per Deane J, quoted below, text at n 45.

25 ACTV (1992) 177 CLR 106 at 138.

26 Theophanous (1994) 182 CLR 104 at 171.

27 McGinty (1996) 186 CLR 140 at 230. See, likewise, ibid at 237 per McHugh J, quoted below,textatn 32.

28 ACTV (1992) 177 CLR 106 at 181. See, likewise, M Moshinsky, “Re-enacting the Constitution in an Australian Act” (1989) 18FL Rev134 at 136 and 144.

29 CompareMcGinty (1996) 186 CLR 140 at 275 per Gummow J.

30 See text at n 26 above. Deane J speaks of “acquiescence” which is ambiguous, as is “acceptance” employed by Murphy J (n 23 above). Politically, the word connotes voluntary compliance with the laws and practices of government but, from the legal perspective, it implies acceptance of the Constitution through use (or non use) of the s 128 amendment power. For a comment on “acceptance” in this context, see G Marshall,Constitutional Theory (1971) at 60.

31 McGinty (1996) 186 CLR 140 at 237 (emphasis added).

32 Ibid.

33 United States Constitution, arts V and VII. All amendments to the United States Constitution except the 21st (which repealed the 18th) have been proposed by Congress (by two-thirds majorities in both Houses) and ratified by the legislatures of three-quarters of the States. (The 21st Amendment was ratified by conventions in three-quarters of the States.) The Japanese Constitution was adopted by the Diet and amendments must be approved both by the Diet (by two-thirds majorities in both Houses) and by the electors at a referendum: see Japanese Constitution, Preamble and art 96.

34 See G Winterton, above n 23 at 126 and 184 at footnote 20.

35 By the Australia Act 1986 (UK), s 1.

36 Compare Dicey's distinction between the legal and political sovereigns: AV Dicey,Introduction to the Study of the Law of the Constitution (10th ed 1959) at 73-76.

37 Hirst, J, “History and the Republic”(1996)40(9)Quadrant38 at 42Google Scholar.

38 See, eg, Dixon, O, Jesting Pilate (1965)at 44 and 200Google Scholar; Moore, W H, The Constitution of the Commonwealth of Australia (2d ed 1910)at 66-67Google Scholar.

39 0 Dixon, ibid and W H Moore, ibid. G Lindell, above n 23 at 30-33 and 49;ACTV (1992)177 CLR 106 at 181 per Dawsonj.

40 Australia Act 1986 (UK), s 1.

41 Ibid s 3. This power had been conferred on the Commonwealth Parliament by the Statute of Westminster 1931 (UK), s 2. However, the Commonwealth of Australia Constitution Act 1900 (UK), the Statute of Westminster 1931 (UK) and the Australia Act 1986 (UK) are exempted from the general power to enact repugnant legislation: see the Statute of Westminster, s 8; the Australia Act, s 15.

42 Mark Moshinsky has likewise remarked that “it is not clear that theAustralia Actshave altered the source of the authority of our Constitution”: M Moshinsky, above n 28 at 144. But contrast Leslie Zines: “[T]he instruments that form the basic rules of our legal system- the Constitution, the remaining provisions of theStatute of Westminsterand theAustralia Act - no longer rely on any 'paramount force'. They can no longer be regarded as the will of any higher law maker outside Australia or the reflection of any higher legal principle”: L Zines, “Commentary”, in H V Evatt,The Royal Prerogative (1987),Cl at C9-10. Why then are they binding? “[The 'basic constitutional instruments' of Australia, Canada and New Zealand]werelaw because they were enacted by a superior law-maker. They are now law because they are accepted as fundamental legal rules of their respective systems and the basic constitutive documents of their communities”: L Zines,Constitutional Change in the Commonwealth (1991) at 27(emphasis in original).See likewise AR Blackshield, above n 3 at 242, quoted n 44 below.

43 ACTV (1992)177 CLR 106 at 181.

44 Tony Blackshield has expressed this well: “We cannot invoke the Imperial Parliament to explain the legitimacy of our legal and political institutions, for the reason that the Imperial Parliament has now become wholly irrelevant:as a fully autonomous independent nation, we must explain our constitutional arrangements wholly in homegrown terms”:AR Blackshield, above n 3 at 242 (emphasis added).

45 Breavington (1988) 169 CLR 41 at 123.

46 Compare Zines, L, The High Court and the Constitution (4th ed 1997)at 396Google Scholar.

47 CompareTheophanous (1994)182 CLR 104 at 171 per Deane J, quoted above, text at n 26. The s 128 electors derive their authority from the constitution and, therefore, logically cannot constitute the source of its authority.

48 See G Winterton, above n 23 at 128; G Winterton, “Extra-Constitutional Notions in Australian Constitutional Law” (1986) 16FL Rev223.

49 G Marshall, above n 30 at 63.

50 Sawer, G, “Government and Law”,in Miller, JD B(ed), Australians & British: Social and Political Connections (1987) 45 at 75Google Scholar.

51 See Craven, G J, “A Few Fragments of State Constitutional Law”(1990)20 UWAL Rev 353 at 360-361Google Scholar.

52 W H Moore, above n 38 at 599.

53 However, some have denied this power, whether from 1901 or later (but prior to 1986): see G Winterton, above n 23 at 127-128 and 185; G Lindell, above n 23 at 41-42.

54 By the Australia Act 1986 (UK),s 1.

55 Ibid s 15(1). Section 15(3) confers a similar power, but since it involves approval by the electors at a referendum it can be seen as compatible with popular sovereignty.

56 For good discussion of this issue, see G Lindell, above n 23 at 40-43 and 49; C D Gilbert,

“Section 15 of the Australia Acts: Constitutional Change by the Back Door”(1989)5QUTLJ55. This power of Australian Parliaments to by-pass s 128 in amending the Constitution has been called “the dirty little secret of Australian constitutional law”:A Fraser, “False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution”(1994) 16Syd L Rev213 at 218.

57 C D Gilbert, above n 56 at 68.

58 Professor Lumb argued for a “hierarchical relationship” between s 128 of the Constitution and s 15 of the Australia Act, the latter being subject to the former: “Section 15 of theAustralia Acts ...cannot be used to amend the covering clauses of the Constitution (or the Constitution itself)”: RD Lumb, “The Bicentenary of Australian Constitutionalism: The Evolution of Rules of Constitutional Change” (1988) 15 U Qld LJ 3 at 32. But see CD Gilbert, above n 56 at 67-68.

59 L Zines, above n 46 at 395.

60 By the Statute of Westminster Adoption Act 1942(Cth),s 3.

61 See Lumb, R D, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) 9 FL Rev148 at 154-158Google Scholar. (However, the present writer would not endorse all of Professor Lumb's views: see G Winterton, above n 23 at 128.)

62 Wheare, KC, The Constitutional Structure of the Commonwealth (1960) at 108Google Scholar (emphasisadded). See also G Marshall,above n 30 at 58.

63 And now through their representatives in the Commonwealth and State Parliaments on the rare occasions when s 15(1) of the Australia Act 1986 (UK) may be invoked.

64 K Mason, “Citizenship”, in Saunders, C (ed),Courts of Final Jurisdiction: The Mason Court in Australia (1996) 35 at 36Google Scholar. Mahoney P has similarly remarked that the Australia Act's “effect and ... purpose” was “to alter the grundnorm of the Australian legal system”: Egan v Willis (1996) 40 NSWLR 650 at 685.

65 L McDonald,above n 2 at 182.

66 See B Fitzgerald, above n 2 at 285; L McDonald, above n 2 at 177.

67 See L McDonald, above n 2 at 184; J M Williams, '"With Eyes Open': Andrew Inglis Clark and our Republican Tradition”(1995) 23FL Rev149; J M Williams, “Revitalising the Republic: Lionel Murphy and the Protection of IndividualRights”(1997)8PLR27.But see Williams, G, “A Republican Tradition for Australia?”(1995)22 FL Rev 133Google Scholar.

68 See n 1 above.

69 See, generally, G Winterton, “The Separation of Judicial Power as an Implied Bill of Rights”, in Lindell, G (ed), Future Directions in Australian Constitutional Law (1994) 185Google Scholar.

70 K Mason, above n 64 at 36.

71 (1992) 177 CLR 106.

72 (1994) 182 CLR 104.

73 (1997) 145 ALR 96.

74 (1992) 174 CLR 455.

75 (1996) 138 ALR 577.

76 C Saunders, “The Mason Court in Context”,in C Saunders (ed),Courts of Final Jurisdiction: The Mason Court in Australia (1996) 2 at 4.

77 A Mason, above n 20 at 5. Kirby J has likewise queried whether popular sovereignty

entails “that the people have reserved to themselves some rights which even the Constitution and laws made under the Constitution cannot extinguish”: MD Kirby, Deakin-Popular Sovereignty and the Foundation of the Australian Constitution, Deakin Law School Public Oration, 22 August 1997 at 19. His Honour's answer appears to be negative: ibid at 19 ff. See also K Mason, above n 64 at 45.

78 A Mason, above n 20 at 8. See, likewise,ACTV (1992) 177 CLR 106 at 136 per Mason CJ;A Mason, “The Interpretation of a Constitution in a Modern Liberal Democracy”, in C Sampford and Preston, K (eds), Inte preting Constitutions: Theories, Principles and Institutions (1996)13 at 30Google Scholar.

79 Leeth (1992) 174 CLR 455 at 486, viewed favourably by AR Blackshield, above n 3 at 247-248, but criticised (rightly) by L Zines, “The Sovereignty of the People”, in M Coper and G Williams (eds),Power, Parliament and the People (1997) 91 at 102.

80 J Toohey, above n 19 at 170. See alsoPolyukhovich v Commonwealth (1991) 172 CLR 501 at 687 per Toohey J: “Whether a court may declare a statute to be invalid because it is unjust is a question that ... does not arise here.”

81 A R Blackshield, above n 3 at 267.

82 Ibid at 246 (emphasis added).

83 L Zines, above n 79 at 104. See, likewise, ibid at 107; L Zines, above n 46 at 422-423.

84 P Finn, above n 4 at 4-5 and 9. But see ibid at 20-21.

85 Smallbone, D A, “Recent Suggestions of an Implied 'Bill of Rights' in the Constitution,Considered as Part of a General Trend in Constitutional Interpretation” (1993) 21 FL Rev 254 at 268Google Scholar.

86 Ibid at 269.

87 See La Nauze, J A, The Making of the Australian Constitution (1972) at 229-232;Google Scholar A Mason,above n 78 at 28-29.

88 See the Colonial Laws Validity Act 1865 (UK), s 3, discussed in G Winterton, above n 17 at 134-135.

89 G Sawer, “Constitutional Laws”, in G W Paton (ed),The Commonwealth of Australia:The Development of its Laws and Constitution (1952) 38 at 38.

90 See, eg,Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393 at 411-412 per Isaacs J

91 CompareVallance v R (1961) 108 CLR 56 at 76 per Windeyer J.

92 See D Home,His Excellency's Pleasure: A Satire (1977).

93 See Winterton, G, Parliament, the Executive and the Governor-General: A Constitutional Analysis (1983), especially chs 1-3Google Scholar.

94 SeeTheophanous {1994) 182 CLR 104 at 171-174 per Deane J.

95 Ibid at 167 (“the living people”) and at 173 per Deane J. See also S Donaghue, “The Clamour of Silent Constitutional Principles” (1996) 24FL Rev133 at 146.

96 Theophanous (1994) 182 CLR 104.

97 See, eg, ibid at 198 per McHugh J;McGinty (1996) 186 CLR 140 at 168 per Brennan CJ, 231-232 per McHugh J; Lange (1997)145 ALR 96 at 112; A Mason, “Trends in ConstitutionalInterpretation” (1995) 18UNSWLJ 237 at 249.

98 SeeACTV (1992)177 CLR 106 at 136 and 138 per MasonCJ; McGinty (1996} 186 CLR 140 at 230-236 and 237 per McHugh J; G Lindell, above n 23 at 44 and 49.