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A Turtle by Any Other Name: The Legal Basis of the Australian Constitution

Published online by Cambridge University Press:  24 January 2025

Anthony Dillon
Anthony Dillon*
Affiliation:
James Cook University
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Extract

‘Lawyers are not disposed to look behind the immediate constitutional framework to the ultimate sources of legal authority’: Lord Lloyd, The Idea of Law (1987) 173.

In spite of Lord Lloyd's observation, the centenary of federation has given many Australian lawyers the impetus to do just that, to consider the ‘ultimate source’ of authority for the Australian Constitution. The general aim of this article is to assess the legal basis of the Australian Constitution and, more specifically, how ‘autochthony’ for the Constitution might be achieved. Part I notes that as a result of the Australia Acts, some members of the High Court have instigated a move away from the traditional basis of the Constitution, the United Kingdom Parliament, to a new basis in popular sovereignty. However, as it could be said that the Australia Acts only dealt unequivocally with ‘autonomy', and not ‘autochthony', this move is dubious. Whether Australia's evolutionary achievement of autonomy means that both the political and legal sources of Australian constitutional authority now lie in some concept of popular sovereignty, is a next step. Part I further argues against the necessity for the judiciary alone to take this next step. This Part concludes by suggesting that, if the traditional legal basis is to be judicially discarded, and a local legal source found, the federal compact is the most historically correct interpretation of federation.

Type
Research Article
Information
Federal Law Review , Volume 29 , Issue 2 , June 2001 , pp. 241 - 272
Copyright
Copyright © 2001 The Australian National University

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Footnotes

*

This analogy is drawn from Professor Frank Scott's work where he relates an eastern myth to describe the Canadian Constitution as an elephant standing upon the turtle of the sovereignty of the United Kingdom Parliament. It is said that all former Dominions and colonies must eventually remove the Imperial turtle and replace it with a local one, but without destabilising the whole superstructure. See generally, Frank Scott, Essays on the Constitution: Aspects of Canadian Law and Politics (1977) 246-250. However, even after patriation of the Canadian Constitution, it is not entirely clear whether in the sense intended by Professor Scott, Canada now has its own turtle, Geoffrey Marshall, Constitutional Conventions (1984) 206. This article will assess attempts at installing a local Australian turtle as similarly equivocal.

I would like to thank Graham Nicholson and Peter Oliver for the benefit of comments made on an earlier draft of this article. A shorter version of this article was delivered to the 19th Annual Conference of the Australia and New Zealand Law and History Society, Australian National University, Canberra, 6 July 2000.

References

1 Autochthony is concerned with how 'at some stage, a state must cease to be the offspring and derivative of an Imperial predecessor and exist as a complete and self-contained entity, as a law-constitutive fact itself', Phillip Joseph, Constitutional and Administrative Law in New Zealand (1993) 398. In contemporary Australia, this notion has taken on some importance in both academic and judicial circles because 'the position with respect to autonomy is satisfactory, [but] the position with respect to autochthony is by no means as strong', Mark Moshinsky, 'Re-enacting the Constitution in an Australian Act' (1989) 18 Federal Law Review 134, 135.

2 Although the concept of autochthony has been described as 'neither very clear nor very useful', Hogg, Peter W, Constitutional Law of Canada (3rd ed 1992) 54 n 41CrossRefGoogle Scholar, it will be pursued in this article because of an apparent confusion in some circles in Australia between it and the concept of autonomy. As such, the term autochthony is employed in this article in the sense used by Kenneth Wheare, Sir, Constitutional Structure of the Commonwealth (1960) ch. 4Google Scholar,

89. See below n 10 and accompanying text.

3 The Australian Constitution is contained in clause 9 of the Commonwealth of Australia Constitution Act 1900 (Imp) (the Constitution Act).

4 By virtue of s 1 of the Australia Acts 1986 (UK) and (Cth). As such, Australia's autonomy is complete and irreversible.

5 Royal Style and Titles Act 1973 (Cth).

6 Blackshield, A R, 'The Implied Freedom of Communication' in Lindell, Geoffrey (ed) Future Directions in Australian Constitutional Law (1994) 232, 242Google Scholar (emphases added).

7 China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 183 (Barwick CJ).

8 Joseph, Phillip, 'Foundations of the Constitution' (1989) 4 Canterbury Law Review 58, 69Google Scholar.

9 Sue v Hill (1999) 163 ALR 648, 675 (Gleeson CJ, Gummow and Hayne JJ), quoting Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 246, 261 (Gibbs J).

10 Wheare, above n 2, 89.

11 For a similar claim in relation to Canada's patriated Constitution, see Marshall, Geoffrey, Constitutional Conventions (1984) 206Google Scholar: '[I]f patriation is equated with the idea of “autochthony” ... Canada's new Constitution is not (in the term popularised by Sir Kenneth Wheare) “autochthonous''. In contrast, Marshall's earlier writing seemed to reflect a broader and less strict view of “autochthony"'. This earlier view will be discussed at length with respect to Australia in this article, see text accompanying n 140 below.

12 Latham, R T E, 'The Law and the Commonwealth' in Hancock, W K (ed) Survey of British Commonwealth Affairs (1937) Vol. 1, 526Google Scholar. Wheare has also noted that many members of the Commonwealth 'are not interested in the technicalities of law when they have the substance of power', above n 2, 106.

13 Peter Oliver suggests that this is '[p]robably, due in part to the fact that Australia had benefited early on from the highest degree of constitutional independence of any of the three'. Peter Oliver, 'The Constitution of Independence', Paper delivered to the Australia and New Zealand Law and History Society, Melbourne, 4 July 1998 (copy on file with author).

14 Dawson, R, quoted in Queensland Constitutional Review Commission, Issues Paper (1999) 212Google Scholar.

15 Detmold, Michael, The Australian Commonwealth (1985) 95, 105Google Scholar.

16 Zines, Leslie, The High Court and the Constitution (4th ed, 1997) 417Google Scholar. See also recent comments of Kirby, J in Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501, 516Google Scholar: 'The significance of the contemporary realisation that the foundation of Australia’s Constitution lies in the will of the Australian people has not yet been fully explored’; Moshinsky, above n 1, 135: 'The source of authority of the Constitution has significant consequences for the way in which the powers of government are exercised and interpreted'; Thomson, James A, 'The Australian Constitution: statute, fundamental document or compact?' (1985) Law Institute Journal 1199Google Scholar; and Lindell, Geoffrey, 'Expansion or Contraction? Some Reflections About the Recent Judicial Developments on Representative Democracy' (1998) 20 Adelaide Law Review 111, 144Google Scholar, where Lindell warns of 'inherent dangers' in using the notion of popular sovereignty 'as a factor in constitutional interpretation'. But cf Winterton, George, 'Popular Sovereignty and Constitutional Continuity' (1998) 26 (1) Federal Law Review 1, 5CrossRefGoogle Scholar.

17 W Moore, Harrison, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 66-67Google Scholar.

18 Fraser, Andrew, 'False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution' (1994) 16 Sydney Law Review 213, 215-216Google Scholar citing Mason, CJ in Australian Capital Television v Commonwealth (1992) 177 CLR 106, 138Google Scholar (‘ACTV’).

19 In this respect I question Joseph's interpretation, above n 1, 397, of the effects of one legal system being derived from another. This article rejects the view that a legally derived (but now fully autonomous) system must necessarily in any way (historically or otherwise) remain subordinate. As Professor Winterton has noted, '[i]t is surely to confuse continuity with subordination'. Winterton above n 16, 7, quoting Marshall, Geoffrey, Constitutional Theory (1971) 63Google Scholar. See also, Daley, John, The Bases for the Authority of the Australian Constitution (1999)Google Scholar unpublished D Phil thesis, Oxford, ch 5.3 (copy on file with author): '[A] legislature whose authority is derived from a source need not remain subordinate to that source' and further '[T]he rhetorical desire to assert that Australia's constitutional law is independent of any other country is [often] based on the mistaken belief that derivation from a source implies subordination' ibid ch 5.6.3. Further, although a break in legal continuity would deny legal derivation, there would never be any point in denying Australia's historical derivation.

20 China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 195 (Gibbs J). See also, the recent 'Treaty of Versailles' cases of Joose v Australian Securities and Investment Commission (1998) 159 ALR 260 and Helljay Investments Pty Ltd v Deputy Commission of Taxation (1999) 166 ALR 302.

21 Daley, above n 19, ch 5.3.

22 Detmold, above n 15, 95. See also, Moshinsky, above n 1, 144.

23 Also noted by Hogg, above n 2, 56 in relation to Canada. See, the comments of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill (1999) 163 ALR 648, 666 where the same is implicit.

24 Marshall, above n 11, 207 (emphasis added). Moshinsky similarly notes, 'acceptance of the traditional view that we do not have an autochthonous constitution, does not necessarily mean that the British Parliament can repeal or amend the Constitution Act', above n 1, 136.

25 Dicey, A V, Introduction to the Study of the Law of the Constitution (1st ed, 1885; 10th ed, 1959) 73-76Google Scholar distinguished between 'legal' and 'political' sovereignty, attributing the former to the King-in-Parliament and the latter to electors. The current political or moral basis of the Constitution is however, a matter of some controversy. For a detailed investigation of the moral legitimacy of obeying the Constitution, see Daley, above n 19, ch 5.6.2: '[T]he moral authority of the Constitution never rested simply on the fact that it was legally derived from the Imperial Parliament'. See also, Kirk, Jeremy, 'Constitutional Interpretation and Evolutionary Originalism' (1999) 27 Federal Law Review 323, 339CrossRefGoogle Scholar.

26 ACTV (1992) 177 CLR 106, 181 (Dawson J). Moshinsky, above n 1, 136.

28 ACTV (1992) 177 CLR 106, 138.

29 Commonwealth v Mewett (1997) 191 CLR 471, transcript of oral argument 6/8/96 from web,http://www.austlii.edu.au/do/disp...ipts/1995/M42/8.html;9.

30 (1995) 184 CLR 19, 91 (citing Mason CJ in ACTV).

31 (1996) 186 CLR 140, 230 (citing Mason CJ in ACTV). See also, Wait, Michael, The ‘Slumbering Sovereign: Sir Owen Dixon’s Common Law Constitution Revisited’ (2001) 29 Federal Law Review 57, 70CrossRefGoogle Scholar: ‘Upon gaining independence, legal-ultimate sovereignty”, citing Mason CJ in ACTV and McHugh J in McGinty.

32 Mason, Sir Anthony, 'The Interpretation of a Constitution in a Modern Liberal Democracy'in Charles Samford and Kim Preston (eds) Interpreting Constitutions: Theories, Principles and Institutions (1996) 13-30, 30Google Scholar (emphasis added).

33 Aroney, Nicholas, 'A Public Choice? Federalism and the Prospects of a Republican Preamble' (1999) 20 University of Queensland Law Journal 262, 284Google Scholar.

34 See particularly, ACTV (1992) 177 CLR 106, 138 (Mason CJ); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 70-72 (Deane and Toohey JJ); Leeth v The Commonwealth (1992) 174 CLR 455, 484 and 486 (Deane and Toohey JJ). See also, Kruger v The Commonwealth (1997) 190 CLR 1, 89 (Toohey J), where his Honour in effect repeated his and Deane J's view from Nationwide News; Ridgeway v The Queen (1995) 184 CLR 19, 91 (McHugh J); McGinty v Western Australia (1996) 186 CLR 140, 230 and 237 (McHugh J). Further Justices such as Brennan CJ (when on the bench) and Gaudron, Gummow and Kirby JJ are increasingly concerned to look for ways to protect individual rights, and all accept as a starting point that the people of Australia are sovereign. However, it would appear that neither Gaudron nor Gummow JJ (nor possibly Kirby J) have explicitly claimed that such sovereignty is now the legal basis of the Constitution.

35 McDonald, Leighton, 'The Denizens of Democracy: The High Court and the 'Free Speech'Cases' (1994) 5 Public Law Review 160, 182Google Scholar.

36 Winterton, above n 16, 10, although Professor Winterton argues 'the Constitution has long been based on popular sovereignty', ibid, 9.

37 Moshinsky, above n 1, 144. See also, Daley, above n 19, ch 5.5.4: 'The attainment of Australian independence does not necessarily imply that authority for the entire legal system transfers to another source'; Hanks, Peter Cass, Deborah, Australian Constitutional Law (1994) 18Google Scholar, arguing that such independence 'need not affect the original rationalisation for the paramountcy of the Commonwealth Constitution'; and Winterton, above n 16, 6.

38 Mason, Keith, ‘The Rule of Law’in Finn, Paul (ed), Essays on Law and Government, Volume 1 (1995) 114, 123Google Scholar: ‘the parliament[s] may be supreme, but they are not sovereign in the sense that Dicey claimed that the British Parliament was sovereign. The distinction between supremacy and sovereignty is critical’. See also, Paul Finn, 'A Sovereign People, A Public Trust', ibid 1, 4, n 24 noting the view that: 'parliaments under our Constitutions [are] the 'Supreme Sovereigns' in this country'.

39 Professor Finn used the phrase 'apparent void' because 'divergent views can be taken on this matter', ibid.

40 See, Aroney, above n 33, 285 citing Wade, H W R, 'The Basis of Legal Sovereignty' [1955] Cambridge Law Journal 172, 192CrossRefGoogle Scholar: 'The Courts will then have to search for an autochthonous source of bindingness'. See also, Kirby, Michael, 'Constitutional Interpretation and Original Intent' (2000) 24 Melbourne University Law Review 1, 7Google Scholar. Unless Australians are prepared to accept Gilbert's notion of two grundnorms, the question may come down to either s 15 of the Australia Acts or s 128 as the source. See, Aroney, above n 33, 287: '[I]f the Imperial Parliament has now abdicated its legislative powers over Australia, legal theory seems to require that we understand, at least one of these powers as the source, rather than a tributary, of the stream'; Lindell, Geoffrey, 'Why is Australia's Constitution Binding? - The Reasons in 1900 and Now, and the Effect of Independence' (1986) 16 Federal Law Review 29, 40CrossRefGoogle Scholar; Lumb, R D, 'The Bicentenary of Australian Constitutionalism: The Evolution of Rules of Constitutional Change' (1988) 15 University of Queensland Law Journal 3, 32Google Scholar and Gilbert, Christopher, 'Section 15 of the Australia Acts: Constitutional Change by the Back Door' (1989) 5 Queensland University of Technology Law Journal 55, 66-68Google Scholar.

41 Scott, Frank, Essays on the Constitution: Aspects of Canadian Law and Politics (1977) 248-249Google Scholar.Michael Waite has suggested that in Sue v Hill (1999) 163 ALR 648, Gleeson CJ, Gummow and Hayne JJ regard the ultimate legal sovereignty as vested in the Crown thus, in some form, restoring a Dixonian constitutionalism; Waite above n 31, 72.

42 See also, Nationwide News, (192) 177 CLR 1, 70 (Deane and Toohey JJ); ACTV (1992) 177 CLR 106, 136 (Mason CJ), 210-211 (Gaudron J), 228 (McHugh J) cited by Aroney, Nicholas, Freedom of Speech in the Constitution (1998) 253 n 30Google Scholar. Of the present Court, Kirby J appears the most prepared to canvas notions of fundamental and deep lying rights that have never been ceded by the people and that may even have been jealously reserved. See, Michael Kirby, ‘Deakin - Popular Sovereignty and the and the True Foundation of the Australian 1997 Deakin Law School Public Oration, delivered 28 January 1999 (copy on file with author); Durham Holding Pty Ltd v New South Wales (2001) 75 ALJR 501, 511.

43 Aroney, above n 33, 290-292. In this sense, the Australia Acts might be seen as 'a novation of the federal compact, a new fundamental agreement between [the] Commonwealth and States', Latham, above n 12, 527.

44 Zines, above n 16, 308.

45 Craven, Greg, 'A Few Fragments of State Constitutional Law' (1990) 20 Western AustralianLaw Review 353, 362Google Scholar.

46 Aroney, above n 33, 288 (emphases added).

47 However, one problem is that for the federal compact to create an autochthonous Commonwealth, the colonies would need to be considered autochthonous. This might be difficult in light of the countervailing necessity to refer to Imperial legislation in their creation. For, how do the people voice their 'ultimate sovereignty' if not by some legally created mechanism (the colonies) and which body created that mechanism (The Imperial Parliament)?

48 Thomson, above n 16, 1201.

49 Finn, above n 38, 3, n 15.

50 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

51 Ibid, 145 (Knox CJ, Isaacs, Rich and Starke JJ).

52 (1992) 177 CLR 106, 138 (emphasis added). I assume that Mason CJ intends 'ultimate' to include political and legal. See, Zines, above n 16, 394: 'Mason CJ, therefore, spoke of the people as heirs to the British parliament.'

53 McGinty v Western Australia (1996) 186 CLR 140, 237 (McHugh J).

54 Justice Hutley has said, 'Australia does not have to pretend that power comes from the people. The polity has an historical legitimacy which America does not have'. Frank Hutley, 'The Legal Traditions of Australia as contrasted with Those of the United States' (1981) 55 Australian Law Journal 63, 64.

55 See, Smallbone, D A, 'Recent Suggestions of an Implied 'Bill of Rights' in the Constitution, Considered as a Part of a General Trend in Constitutional Interpretation' (1993) 21 Federal Law Review 254, 269CrossRefGoogle Scholar: 'In an age which has demonstrated that democracy can exist without constitutional recognition of the concept of popular sovereignty, there is no need to adopt so dangerous and unsatisfying a notion into the fundamental fabric of our Constitution'. Daley, above n 19, ch 5.6.1 notes that popular sovereignty is not even 'a desirable fiction'. Further, as Professor Zines has noted, '[i]t is difficult to be certain in clear legal terms what the notion of the sovereignty of the people means. The concept of sovereignty of the people … must be regarded as either purely symbolic or theoretical', above n 16, 395-396. As Aroney has noted, '[i]n either case, there is a problem of definition, which must be addressed'. Aroney, above n 33, 288. See also Waite, above n 31, 72: the vesting of sovereignty in the people is apt to create confusion.’

56 Harley Wright, G A, 'Sovereignty of the People - The New Constitutional Grundnorm?'(1998) 26 Federal Law Review 165, 184CrossRefGoogle Scholar.

57 See below n 147 and accompanying text for other arguments suggested to sustain the theory of popular sovereignty as the source of authority of the Constitution; ie, approval of the Constitution by 'acceptance' and/or by 'referenda'.

58 See, Fraser, above n 18, 217: 'Section 128 establishes a procedural condition precedent to the exercise of the constituent power vested in the Commonwealth Crown-in-Parliament, not an alternative locus of sovereign authority'. Further, as Professor Winterton has noted, '[t]he s 128 electors derive their authority from the Constitution and, therefore, logically cannot constitute the source of its authority', above n 16, 7 n 47.

59 (1996) 186 CLR 140, 237. In this respect relying on Bryce's notion that 'ultimate sovereignty' resides with 'the authority (whether a Person or Body) which made and can amend the constitution', Bryce, James, Studies in History and Jurisprudence (1901) Vol 2, 53Google Scholar. However Bryce might be thought to be equating 'ultimate' with 'political', because he further attributed 'legal sovereignty' to the legislature (conjointly with the amending body).

60 Winterton, above n 16, 4-5. Nor even in the US for that matter, where that popular constitution is 'amended by means other than a direct, popular vote', Aroney, above n 33, 272 citing Gilbert, above n 40, 67.

61 Winterton, above n 16, 5. See also, Latham, Sir John, 'Interpretation of the Constitution' in Else-Mitchell, R (ed) Essays on the Australian Constitution (2nd ed, 1961) 1, 4Google Scholar.

62 As such Greg Craven's 'perennial question [still] rings out: “Which people, and in what units?"', above n 45, 360. See also, Kirk, above n 25, 341. Gummow J in McGinty v Western Australia (1996) 186 CLR 140, 274-275 emphasised the federal considerations in s 128 which circumscribe the popular provisions.

63 Quick, John and Garran, Robert, The Annotated Constitution of the Australian Commonwealth(1st ed, 1901, 3rd ed, 1995) 988Google Scholar. See also, the recent comments of Aroney: '[I]f a theory of 'popular sovereignty' is presupposed by the federal constitutional system, it is a theory which contemplates various configurations of “people[s]” constituting their governments in their varying capacities.' Aroney, Nicholas, 'Federal Representation and the Framers of the Australian Constitution' in Moens, Gabriel (ed) Constitutional and International Law Perspectives (2000) 13, 44.Google Scholar

64 See, Zines, Leslie, 'The Sovereignty of the People' in Coper, Michael and Williams, George (eds) Power, Parliament and the People (1997) 91-107Google Scholar, 95: '[T]he sovereignty attributed to the people has a quite different effect, and probably a different meaning, from that previously possessed at Westminster'.

65 Daley has noted, '[i]f Australia has 'popular sovereignty' because the people have the power to amend, then to the same extent Australia has “Commonwealth Parliamentary sovereignty"', above n 19, ch 2.5.1.

66 Fraser, above n 18, 217: 'Far from establishing the 'ultimate sovereignty of the people' section 15 of the Australia Act (UK) actually made it possible for the Commonwealth and state parliaments acting together to bypass section 128'. See also, McGinty v Western Australia (1996) 186 CLR 140, 275 (Gummow J).

67 Daley, above n 19, ch 6.4.5.

68 Noted by Hart, above n 69, 149; Latham, above n 12, 533; Marshall, above n 19, 45-47 and Jennings, I, The Law and the Constitution (5th ed, 1959) 151-172Google Scholar.

69 Marshall, above n 19, 57.

70 Dicey, above n 25, 39-41 and 67-68. See also, Hart, H L A, The Concept of Law (2nd ed, 1994)149Google Scholar. R T E Latham pointed out (citing Dicey) that this is because 'established constitutional doctrine held that it was in strict law impossible for the Imperial Parliament to put it beyond its own power to repeal any of its own Acts' (emphasis added), Latham above n 12,530. See also, Wheare, above n 2, 111 and Wade, above n 40, 187-189.

71 Peter Oliver, 'The 1982 Repatriation of the Constitution of Canada: Reflections on Continuity and Change' (1994) 28 La Revue Juridique Themis from web, 24/3/00, http://www.droit.umontreal.ca/pub/themis/94vol28n2-3/OLIVER.html; 17. A separate line of research might canvas whether there are intermediate positions.

72 Marshall, above n 19, 57-64. See text accompanying n 140 below.

73 The Balfour Declaration was the result of proceedings at the 1926 Imperial Conference. The declaration read in part: 'They [Great Britain and the Dominions] are autonomous communities within the British Empire, equal in status, [and] in no way subordinate one to another in any aspect of their domestic or external affairs'. The Statute of Westminster was a result of proceedings at the 1930 Imperial Conference.

74 British Coal Corporation v The King [1935] AC 500, 520 (Viscount Sankey LC) (emphasis added).

75 Winterton, George, 'The British Grundnorm: Parliamentary Supremacy Re-Examined'(1976) 92 Law Quarterly Review 591, 603Google Scholar.

76 According to the traditional theory of parliamentary sovereignty, the very fact of legislative abdication is disputed. A sovereign parliament cannot abdicate part of its sovereignty. It can only abdicate its sovereignty entirely, that is by dissolving itself, leaving no successor, or by transferring permanently its entire legislative authority to a new legislative body: Oliver, Peter, 'Cutting the Imperial Link' in Joseph, Phillip (ed) Essays on the Constitution (1995) 368-403Google Scholar, 394, n 145, quoting Marshall, above n 11, 209. See also, Wade, above n 40, 196, n 69 and D Lloyd, The Idea of Law (1964, rep 1987) 182. See also, Attorney-General (NSW) v Trethowan (1931) 44 CLR 394, 425-426 (Dixon J). However, H W R Wade has discussed a distinction between 'cession of territory' and 'cession of Parliament's powers, meaning the omnipotence of future Parliaments'. He views the former as uncontroversial and notes that 'Parliament has repeatedly accepted limitations of its sovereignty in conferring independence' However, if the latter were accepted a 'technical revolution' (albeit disguised or camouflaged) has taken hold. As such, the former may amount to a partial abdication of sovereignty: Wade, H W R, 'Sovereignty - Revolution or Evolution?' [1996] 112 Law Quarterly Review 568, 573-575Google Scholar.

77 This occurred by means of a series of 'Independence Acts' commencing as early as 1947 with the Indian Independence Act 1947 (UK) s 6(4) and, in more patient quarters, by the Canada Act 1982 (UK) s 2, the Constitution Act 1986 (NZ) s 15(2) and the Australia Act 1986 (UK) and (Cth) s 1.

78 [1983] 1 Ch 77.

79 Ibid, 87.

80 [1935] AC 500

81 Hart, above n 69, 121.

82 [1983] 1 Ch 77, 88-89. Not expressly overruled on this point, although the Court of Appeal appeared not to proclaim such a wide view of the traditional theory, [1983] 1 Ch 95, 105.

83 Ibid, 88. See also, Ndlwana v Hofmeyr [1937] AD 229, 237: 'Freedom once conferred cannot be revoked'.

84 (1976) 135 CLR 552.

85 Ibid, 567.

86 Murphy J stated that: 'In my opinion (notwithstanding many statements to the contrary) Australia's independence and freedom from United Kingdom legislative authority should be taken as dating from 1901': Ibid. See also, Deane J in Kirmani v Captain Cook Cruises Pty Ltd [No. 1] (1985) 159 CLR 351, 442 where his Honour intimated that 'it may be necessary at some future time to consider whether traditional legal theory can properly be regarded as providing an adequate explanation of the process which culminated in the acquisition by Australia of full “independence” and “Sovereignty"'.

87 See, Fraser, above n 18, 222: 'Those who insist that the “real” genesis of the Constitution lies in its acceptance by the Australian people have further eroded the already shaky boundary between law and politics'.

88 Finn, above n 38, 4.

89 Murphy, J in Bistricic v Rokov (1976) 135 CLR 552, 566-567Google Scholar quoting and commenting on Viscount Sankey LC's judgment in British Coal Corporation v The King [1935] AC 500, 520.

90 Oliver, Peter, 'Canada, Quebec, and Constitutional Amendment' (1999) 49 University of Toronto Law Journal 519, 561CrossRefGoogle Scholar. See also, Oliver, above n 76, 394.

91 Marshall, above n 11, 209.

92 Marshall, above n 19, 45.

93 Daley, above n 19, ch 5.4.7.

94 The BNA Act was renamed the Constitution Act 1867. Like autochthony, 'patriation' is a troublesome concept with any one of a number of standards and definitions.

95 Reference re Amendment of the Constitution of Canada (Patriation Reference) [1981] SCR 753, 799,801.

96 Oliver, above n 71, 3.

97 Joseph, above n 8, 70 and n 1, 412.

98 Oliver, above n 71, 2.

99 Ibid, 13.

100 Ibid, 19. See also, Oliver, above n 90, 562.

101 Whilst H L A Hart admitted that his thesis of an ultimate rule of recognition, providing authoritative criteria for the identification of valid legal rules, resembled Kelsen's grundnorm and Salmond's 'ultimate legal principle', validity for him, was a question of fact. Unlike Kelsen's grundnorm, which was a juristic assumption or postulation, the rule of recognition could be established by an appeal to the facts, ie, to the actual practice of the courts and officials of the system. See, Hart, above n 69, 292-293. See also, n 147 below and text accompanying.

102 Oliver, above n 76, 398.

103 The concept of a grundnorm was developed by Hans Kelsen as a pre-supposition in juristic thinking. It is the highest norm in any national legal order, and by identifying it, the jurist is able to interpret all subsidiary norms as valid, and as a non-contradictory field of meaning. All subsidiary norms can be traced hierarchically back to the grundnorm, each subsidiary norm being validated by the norm above it: Kelsen, Hans, The Pure Theory of Law (2nd ed, 1970) 208Google Scholar. John Finnis in his seminal article has said that Kelsenian theory is 'incapable of explaining how a legal system might divide into two independent systems by process of law', John Finnis, 'Revolutions and Continuity in Law' in Simpson, A W B, (ed) Oxford Essays on Jurisprudence (Second Series) (1973) 44-76, 60Google Scholar (emphasis added).

104 See, Winterton, above n 16. But contrast some jurists have been prepared to assess the elevation of popular sovereignty as amounting to a change in the 'grundnorm of constitutional interpretation': Wright, above n 56, 165. See also, McDonald, above n 35, 161-162. According to Mahoney P in Egan v Willis and Cahill (1996) 40 NSWLR 650, 685: 'The effect ... and purpose [of the Australia Act, was] to alter the grundnorm of the Australian legal system'; Waite above n 31, 70 commenting on Mason CJs Judgment in ACTV (1992) 177 CLR 106 and McHugh Js judgment in McGinty (1996) 186 CLR 140 who argued that: 'these developments have, without overstatement, been described as revolutionary.'

105 (1999) 163 ALR 648, 665-666 (Gleeson CJ, Gummow and Hayne JJ).

106 Twomey, Anne, 'Sue v Hill - The Evolution of Australian Independence' in Stone, Adrienneand Williams, George (eds) The High Court at the Crossroads (2000) 77-108, 100Google Scholar.

107 Horan, Chris, 'Commentary' in Stone, and Williams, ibid, 109, 117-118Google Scholar.

108 Marshall, above n 11, 207.

109 Zines, above n 16, 305 and 308. Similarly, Gummow J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 138-9 noted that it is unnecessary to decide whether 51(xxxviii) is sufficient to support the Australia Act 1986 (Cth) because 'the Constitution continues to speak to the present by taking into account the operation of the Australia Act 1986 (UK)'.

110 Latham, above n 12, 530.

111 Moshinsky, above n 1, 151.

112 Ibid, 137.

113 By whatever means it is achieved, the people must be elevated to a legal constitutional role to replace the Crown, so that the arms of government are constantly reminded of where they derive their constitutional power. Many have noted that the ARM 'minimalist' model did away with the 'impartial' and 'apolitical' Law-Giver (the Crown) without replacement, or on another view, substituted a political one: the Commonwealth Parliament. See, Martyn Webb, 'Republicanism Means More Than Removing The Queen: Lessons from America 1776-1787' from web, 11/01/99, http://www.norepublic.com.au/Pages/Essay_Webb_No_Case_Paper.htm; 5-6. See also, Alan Atkinson, The Muddle-Headed Republic (1993) 51.

114 The strict view was espoused by Wheare above n 2, 111. It was also asserted by Stanley Smith, De and Brazier, Rodney (eds) Constitutional and Administrative Law (7th ed, 1994) 70Google Scholar; Thomson, James A, 'Altering The Constitution: Some Aspects of Section 128' (1983) 13 Federal Law Review 323, 344-345CrossRefGoogle Scholar; Enid Campbell, 'An Australian-made Constitution for the Commonwealth of Australia' in Report of Standing Committee D to the Executive Committee of the Australian Constitutional Convention (1974) 95, 100, and approved by Moshinsky, above n 1, 150-151, thereby requiring him to conclude that 'if constitutional autochthony is all important, only the [peaceful legal revolution] method will do'.

115 Oliver, above n 90, 560. Oliver is thus in agreement with Wheare above n 2, Joseph above n 1 and Moshinsky above n1.

116 Oliver, above n 90, 560.

117 Scott, above n 41, 249.

118 Oliver, above n 90, 608.

119 Justice Kirby has noted this (almost) unbroken legal lineage of a millennium. Michael Kirby, 'The Struggle for Simplicity, Lord Cooke and Fundamental Rights', paper delivered to the New Zealand Legal Research Foundation Conference, April 1997 from web, 29/01/99, http://www.hcourt.gov.au/cooke.htm; 2. Others would however suggest other discontinuities also, eg, 1688-89.

120 Oliver, above n 76, 392.

121 By repeal I mean repeal in toto. Only in this way might 'the current format of a national constitution contained in an Act of the Parliament of another country' be dispensed with, thus 'enhanc[ing] its status as a 'foundational' document': An Australian Republic, The Options-The Report, The Report of the Republican Advisory Committee (1993) Vol 1, 122.

By contrast, it could be argued the Constitution Alteration (Establishment of Republic) 1999 (Cth) did not purport to deprive the Constitution Act of legal force. The Constitutional Convention had recommended that any provisions of the Constitution Act that have no continuing force or relevance, should be repealed However, the Constitution (Requests) Bill 1999 (Qld) requested the Commonwealth not to repeal either the long title, the enacting words, the short title (covering clause 1) and covering clause 9 which contains the Constitution itself. According to the Bill, only covering clauses 2 to 8 should be repealed (clauses 5 and 6 were in fact to be incorporated into the Constitution itself; ss 126 and 127) and the existing preamble omitted.

The Commonwealth Parliament has not legislated in response to these requests and moreover, the Commonwealth was apparently relaxed about the need to delete the existing preamble (see, Constitutional Alteration (Preamble) Bill 1999 (Cth)) and most of the covering clauses. However, even in light of the more stringent requests from the States, the retention of the long and short titles meant that the Constitution Act would have remained in force, and further, still derived its legal authority from the Westminster Parliament.

122 This is due in part to the uncertainty surrounding the true scope and effect of s 2(2) of the Statute of Westminster and s 51(xxxviii) of the Constitution, although the better view might be to adopt an interpretation that promotes the 'completeness of Australian legislative power': Polyukhovich v Commonwealth (1991) 172 CLR 501, 638 (Dawson J). To amend the Constitution Act, the six State parliaments must first empower the Commonwealth (by the use of s 15(1) of the Australia Acts) to amend (not necessarily repeal, as Moshinsky and Gilbert suggested) s 8 of the Statute of Westminster to remove the limitation placed upon the Commonwealth. The limitation so removed, the Commonwealth Parliament would then be empowered by either s 2(2) of the Statute or s 51(xxxviii) of the Constitution, or both, to amend the Constitution Act. This was the method chosen by the States to implement changes to the covering clauses of the Constitution Act had the 1999 republican referendum been successful; see Constitution (Requests) Bill 1999 (Qld) and other uniform State request legislation. This also affirms the view that s 128 cannot amend anything outside what covering clause 9 of the Constitution Act defines as 'the Constitution of the Commonwealth'.

123 Gageler, Stephen and Leeming, Mark, 'An Australian Republic: Is a Referendum Enough?'(1996) 7 Public Law Review 143, 151Google Scholar.

124 If the repeal of the Constitution Act were considered unauthorised, the claim to autochthony would be automatically stronger.

125 Moshinsky, above n 1, 150-151. However, he also notes a less strict view: 'Even if legal continuity were preserved so long as the enactment of the constitution took place in Australia, it would be legally homegrown'. Thomson's view of any such use of s 15(1) of the Australia Acts is that 'there would still exist an unbroken stream of authority flowing from the United Kingdom Parliament' above n 114, 344.

126 Brookfield, F M, 'Kelsen, the Constitution and the Treaty' (1992) 15 New Zealand UniversitiesLaw Review 163, 171Google Scholar.

127 Joseph, above n 1, 122. See also, Oliver, above n 76, 391.

128 As Moshinsky, above n 1, 151 has noted: '[I]t would have to be considered whether popular approval need also be received from a majority of voters in each State as it is arguable that it is in units of States that the popular will is expressed in Australia as a federation'. (emphasis added) Thus Moshinsky concludes (and I agree) that to obtain popular approval in all the States would be politically 'cautious' and 'desirable'. So too, Aroney has said '[T]he ultimate reason for turning to unanimity for the alteration [and repeal] of the Constitution Act is that it embodies the formative basis of the federation': above n 33, 290.

129 Moshinsky, above n 1, 150.

130 Aroney, above n 33, 271.

131 Moshinsky, above n 1, 149.

132 Thomson, above n 114, 344-345, n 138 (emphasis added).

133 Such an assertion of popular sovereignty might take in part, the following form: 'Whereas all the constitutional authority ever possessed by the monarchs of the Crown of England and later imposed by the monarchs of the Crown of the United Kingdom of Great Britain and Ireland, and of the Crown of the United Kingdom of Great Britain and Northern Ireland over the Commonwealth of Australia, such allegiance is hereby withdrawn, and is now vested in the sovereign people of the Commonwealth Republic of Australia.'

(Adapted in small part from the Constitution of New Jersey 1776).

134 Moshinsky, above n 1, 149.

135 In terms of the Australian Commonwealth becoming a republic, such unanimity would in practice give one State the power of veto. Although on the other hand, for the sake of the unity of the federation, all the constituent elements should agree to become republican at the same time.

136 As a result, the people can deal with their fundamental rights as they wish. They can place their faith in whichever institution they believe will best protect their liberty; that is, a parliament or a court. Varying methods might be utilised to protect judicially enforceable rights. A Bill of Rights (constitutionally entrenched or statutory) might be enacted. Rights may even be reserved (as distinct from those surrendered) by provisions similar to the Ninth and Tenth Amendments to the United States Constitution. Australians could also embrace indigenous reconciliation issues in any new constitutional arrangements, perhaps reflected in a treaty. Although, as Professor Finn noted, collective popular sovereignty 'poses a direct obstacle to acceptance of sovereignty in indigenous Australians', above n 38, 5.

137 Wade, above n 40, 191-197.

138 Noted by Thomson, above n 114, 344-345, n 138. Professor Sawer's reference to a 'judicial UDI' is to Madzimbamuto v Lardner-Burke [1968] 2 SA 284 where the High Court of Southern Rhodesia held the usurping government (Smith's UDI) in Southern Rhodesia in 1965 to be a 'lawful' de-facto government. On appeal however, the Privy Council held that the 'rebel regime' could not be regarded as lawful, since the United Kingdom Government was still taking steps to regain control: [1969] 1 AC 645, 725 (Lord Reid). As Detmold has noted '[I]f in fact the revolutionary contest had been settled on the ground in favour of the new regime the Privy Council would have recognised it as legitimate': above n 15, 94. Marshall has noted that 'when a Commonwealth country asserts the homegrown nature of its legal system with Imperial approval and complicity, the sonorous label of autochthony is attached. However, if this assertion is contentious - as in Rhodesia - it is dubbed “UDI"': above n 11, 171.

139 This is not to downplay the role of courts. At last resort, it is the judiciary that must recognise and thereby legitimate legal change. Witness the recognition of the illegally convened (and constituted?) Convention-Parliament that offered the English crown to William and Mary. Brookfield, above n 125, 165.

140 Marshall, above n 19, 58-60 (emphasis added).

141 Joseph, above n 1, 412, 414. Hogg, above n 2 has applied Marshall's criteria to Canada.

142 Brookfield, above n 126, 172. In respect of the first criterion, Brookfield cites 1947. In respect of the third, he cites 'since the early 1970's if not well before', although not before noting 'some difficulties in the concept of acceptance'.

143 Section 26(1) of the Constitution Act 1986 (NZ) repealed inter alia the New Zealand Constitution (Amendment) Act 1947 (Imp). Brookfield notes that New Zealand was not authorised to conduct such a repeal, and when it did so, a legal break was secured: ibid, 171. As such, the Constitution Act 1986 (NZ) (unlike the Canada Act 1982 (UK) and the Australia Acts) is seen as a unilateral repudiation of United Kingdom legislative power.

144 Joseph, above n 1, 412-413: 'something more is required than a locally operating amendment process'. See also, Hogg, above n 2, 58.

145 In a recent article discussing the debate surrounding the possible methods of altering the Constitution Act, Aroney describes the 'orthodox or conventional view' as holding that the alteration power contained in s 128 'does not extend to the Constitution Act'. He then cites Gageler and Leeming's suggestion, above n 123, that, as a result of s 128's deficiency, 'to be safe one must turn to ss 51(xxxviii) and 15(1)'. See, Aroney, above n 33, 274. However, Aroney also acknowledges two kinds of arguments that propose an extended role for s 128: repugnancy-based arguments and theory-based arguments.

146 See above nn 121 - 139 and accompanying text.

147 Joseph has pointed out that a new attitude of courts and officials also has a connection with Kelsen's grundnorm: above n 1, 121-122 and 398. However, it would seem that Marshall's reasoning is more comfortably understood in Hartian terms.

148 Oliver, above n 71, 15.

149 Joseph, above n 1, 414.

150 Hart, above n 69, 122.

151 Ibid, 123.

152 See Harris v Donges [1952] 1 TLR 1245.

153 Fraser, above n 18, 215-216.

154 Hart, above n 69, 122. Even on a Kelsenian analysis, a 'lack of symmetry' may exist: Lumb, above n 40, 6, noted by Aroney, above n 33, 270.

155 Hart, above n 69, 120.

156 Ibid.

157 Twomey, above n 106, 101.

158 Marshall, above n 19, 58. It would appear the modern genesis of this notion can be traced to the horticultural comments made by Wheare about the Constitution being struck at Westminster but then transplanted to Australia, where it has since thrived: above n 2, 108-109 and also Hart, above n 69, 120.

159 Leslie Zines, Constitutional Change in the Commonwealth (1991) 27. See also, Zines, above n 16, 318. However, Professor Zines indicates that this view does not necessarily elevate 'the People' to a fundamental legal norm: 'In other words [the Constitution] is our fundamental law and needs no further legal justification': Zines, above n 64, 93. Similar uncertainties that surround the legal basis of the Queensland Constitution are currently being addressed. The Queensland Constitutional Review Commission 'believes that such uncertainty should be brought to an end if possible by making an unequivocal statement that the Queensland Constitution IS the fundamental law of the State by identifying it as the highest rule of the State's legal system': Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to The Acts and Laws that relate to the Queensland Constitution (2000) 24. Such a course would seem to overcome the difficulties surrounding the 'acceptance' argument and might also be considered for the Commonwealth Constitution.

160 First Report of the Constitutional Commission (1988), vol 1, 107.

161 (1994) 182 CLR 104, 171. In this respect Deane J seemed to follow Murphy J's reasoning in Kirmani v Captain Cook Cruises Pty. Ltd. [No. 1] (1985) 159 CLR 351 more closely than his own. Murphy J had stated, 383: 'The authority for the Australian Constitution then [1 January 1901] and now is its acceptance by the Australian people'.

162 So too does Deane J's recognition in Breavington v Godleman (1988) 169 CLR 41, 123 of 'the past authority of the United Kingdom Parliament'.

163 Zines, above n 64, 93.

164 Lindell, above n 40, 37 (emphases added).

165 (1985) 159 CLR 351, 383.

166 Noted by Greg Craven, Secession (1986) 138. See similar criticisms in China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 181 (Barwick CJ).

167 Lindell, above n 40, 37, 44. See Lindell's recent concerns that his earlier 'additional' explanation has been developed in a way that may impact on constitutional interpretation: above n 16, 144.

168 Marshall, above n 19, 60. See also, Winterton, above n 16, 4 n 30.

169 See, ACTV (1992) 177 CLR 106, 181 (Dawson J). See also, Marshall, above n 19, 60.

170 See, Daley, above n 19.

171 Ibid, ch 4.1.2.

172 George Williams, 'The High Court and the People' in Hugh. Selby (ed) Tomorrow's Law (1995) 271, 289. See also a poll conducted by I Saulwick in 1992 which found that 33 per cent of Australians did not even know that Australia has a written Constitution: referred to by Stephen Donaghue, 'The Clamour of Silent Constitutional Principles' (1996) 24 Federal Law Review 133, 146, n 87. It is admitted these figures may now be higher in light of the media coverage surrounding the 1999 referendum.

173 Craven, above n 166, 140.

174 Also noted by Wheare, above n 2, 109.

175 Ibid, 108.

176 Allan Ides, 'Judicial Supremacy and the Law of the Constitution' (1999) 47 UCLA Law Review 491, 505.

177 Daley, above n 19, ch 6.4.5.

178 China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 181 (Barwick CJ).

179 Most women (all colonies except South Australia and Western Australia) and aboriginal Australians were denied the right to vote: noted by Zines, above n 16, 395-396. For a recent analysis of the categories of disqualification which plagued the franchise for the referenda, see, Anne Twomey, 'The Federal Constitutional Right to Vote in Australia' (2000) 28 Federal Law Review 125, 144.

180 Craven, above n 166, 76. Indeed, in this sense Australia's claim is much less than the referendum that approved the constitution of Eire in 1937. In that case, the approval of the people 'constituted the enactment of the document': Wheare, above n 2, 94. Still further, Australia's claim is less than that asserted in 1922 by the founders of the constitution of the Irish Free State, who claimed they were sitting as a constituent assembly, and that the Irish Constitution was not 'passed' but merely 'registered' by the United Kingdom Parliament, L Kohn, The Constitution of the Irish Free State (1932) 91.

181 Daley, above n 19, ch 2.4.3, but cf Helen Irving, To Constitute a Nation (1997) 205.

182 Michael Kirby, Introduction (1996) 20 Melbourne University Law Review 949, 950.

183 Sue v Hill (1999) 163 ALR 648, 666 (Gleeson CJ, Gummow and Hayne JJ).

184 Also noted by Hogg in relation to Canada: above n 2, 54.

185 Craven, above n 166, 141.

186 Daley, above n 19, ch 6.3.2.

187 'The criteria are not synonymous': Joseph, above n 1, 412.

188 Ibid, 413: Even 'legal dis continuity is probably insufficient itself to establish a native legal root or local grundnorm'.

189 Hogg, above n 2, 55, n 44.

190 Aroney, above n 33, 271. Similarly Hogg concludes that 'if patriation means the securing of constitutional autochthony' patriation has not been achieved for the Canadian Constitution: above n 2, 55.

191 Aroney, above n 33, 271 noting Moshinsky, above n 1, 135.

192 Winterton, above n 16, 6.

193 Ibid 7.

194 Daley, above n 19, ch 5.6.1.

195 Oliver, above n 90, 551, noting J Beetz, 'Reflections on Continuity and Change in Law Reform' (1972) 12 University of Toronto Law Journal 129.

196 Winterton, above n 16, 2 has intimated that 'the outcome of constitutional litigation in the High Court [has become] highly unpredictable'. Similarly, Professor Zines has indicated that 'there is not any general pattern or direction [in constitutional interpretation] at this stage': Leslie Zines, 'The Present State of Constitutional Interpretation' in Stone and Williams above n 106, 224-238, 238.

197 See, above nn 121-131 and accompanying text.

198 See, above n 132-139 and accompanying text.

199 Wade, above n 40, 191-197: a 'disguised revolution'.

200 Joseph, above n 1, 122.

201 Craven, above n 45, 360.

202 Adapted from the judgment of Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645,725 quoting in part Muhammed Munir CJ in The State v Dosso [1958] 2 PSCR 180, 185.