The idea of sovereignty
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The idea of sovereignty. One who exercises unlimited power eg Hobbes’ Leviathan The Australian Commonwealth: A federation Three arms of government Judicial review (of admin, exec & legislative action)

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The idea of sovereignty
The idea of sovereignty

One who exercises unlimited power eg Hobbes’ Leviathan

The Australian Commonwealth:

A federation

Three arms of government

Judicial review (of admin, exec & legislative action)

Proposal: The Constitution is sovereign because the fundamental legal norm is the rule of law, which is fundamental because it coheres with human nature

1 st possibility
1st possibility

The people are sovereign, because

The Parliament is chosen by the people, ss 7 & 24

The Federation referendum was passed by the people

Constitutional changes require popular assent, s 128

Several opinions of Mason court judges eg in Australian Capital Television and Nationwide News

Widespread view in society

Parliament is chosen by the people but
Parliament is chosen by the people, but…

Many people ‘of each State’ and ‘of the Commonwealth’ may not enrol to vote eg under 18, the very old, some disabled, some mentally ill, many prisoners, non-citizens etc

Some people entitled to enrol do not enrol

Some who are enrolled do not vote

Some who are entitled to vote arguably should not vote

It’s hard to accept that the people esp as a whole can act like a sovereign

The word democracy is nowhere in the Constitution; it could have been put there

The people voted in favour of federation but
The people voted in favour of Federation, but…

But only 17% of the population actually voted, and far fewer than this supported federation

Constitutional changes require popular consent but
Constitutional changes require popular consent, but…

Very few proposals succeed

The double majority requirement means that a minority of 20% of voters can block a proposal supported by 80%

There is only parliamentary initiation of proposals for change

Turnbull: many voters are ignorant and, as a result, tend to be complacent & conservative

Davidson: Australians have been produced since white settlement as cowardly, subservient, individualistic and timid

What might have been, Rousseau > Habermas

The actual history, Hobbes > Nietzsche

Some high court judges have recognised popular sovereignty but
Some High Court judges have recognised popular sovereignty, but…

The same judges often rule statutes passed by the Parliament are invalid, because eg

No constitutional head of power exists

A right has been breached

Inconsistent with Chp III principles

Conclusion: the people are not sovereign

2 nd possibility
2 but…nd possibility

The High Court is sovereign because it

strikes down statutes (but later legislation may override cases in which this happens)

Resolves constitutional disputes incl between the States & the Commonwealth (but most legislation is never challenged)

Determines the meaning of the Constitution – as a whole and in its parts, but is always constrained by the rule of law

Conclusion: The High Court is not sovereign

Checks balances
Checks & balances but…

These obviously exist and account for the creative tension and differences between the Parliament and the High Court

But of particular importance is the common law principle of the ‘rule of law’; most clearly seen in Chapter III cases where the High Court is asked to invalidate statutes

3 rd possibility
3 but…rd possibility

The Constitution is sovereign ie the sovereign is not a person or institution but the foundational law/set of legal principles of the Commonwealth

Even though this is foreign to the traditional idea of sovereignty, it is consistent with the common law principle of the ‘rule of law’

The meaning of the ‘rule of law’ is most visible in Chp III (and similar) cases

Cases on the rule of law
Cases on the Rule of Law but…

Communist Party 1950 esp Dixon CJ

BLF v NSW 1986 (and Union Steamship 1988): ss 5 and 51

Wainohu 2011: court must give reasons

Tait 1962: the executive must defer to court processes

Hindmarsh Island 1998: on the race power

Dietrich 1992: trials must be fair

Leeth 1992: right to equal treatment under the law unless rational basis for doing otherwise

Kable 1996: courts cannot be required to act non-judicially

Free speech cases: political speech is free unless it is constrained on reasonable grounds

Rule of law common sense and everyday life
Rule of Law, Common Sense and Everyday Life but…

The rule of law is based upon the common sense of everyday life, during which ethical and political judgements are continuously made about what is right orwrong (justice), and good and bad.

s. 51: ‘peace order and good government’ (s. 5, NSW: welfare replaces order)

We properly and naturally presume that:-

1. peace is better than war or civil strife,

2. order is preferable chaos

3. good governments is preferable to bad government

Aristotle habermas
Aristotle > but…Habermas

Human beings by nature:

1. Speak and use their reason

2. Are communal

3. Desire to know, to fornicate, to have money etc

4. Have a sense of justice

These assumptions are obviously true according to common sense; no scientist would even bother trying to refute them (possibly except No 3) ie a person cannot walk around herself

Human nature the rule of law the constitution
Human Nature but…The Rule of LawThe Constitution

Some things are always changing

Some things don’t change

The Constitution is a written text – fixed in this sense

The Constitution stays fixed like this, but because things in the world change, the text must be continuously re-interpreted to take account of these changes

Through various agents, the Constitution and the rule of law develop (but in some ways stay the same) like a non-linear twisting spiral. This reflects the circularity involved in the dynamics between the text and the agents who work with it in the world

Two sovereigns
Two Sovereigns? but…

It is possible that the Constitution and the rule of law are both sovereign at the same time and that they reinforce each other

This can be true on the analogy of the Crown as sovereign – the Crown is one but many eg the Crown in right of the Commonwealth, as opposed to the Crown in right of the State of NSW

law but…


law but…


law but…


law but…


law but…


law but…


law but…