POPULAR SOVEREIGNTY AND CONSTITUTIONAL CONTINUITY

George Winterton*

A "PARADIGM SHIff"? Australian constitutionalism appears to be in turmoil. Ever since the Free Speech cases of 1992,1 commentators have been telling us that constitutionally we have undergone a "glorious revolution"2 and that Australian constitutionalism has ex~erienced a "fundamental paradigm shift" from parliamentary to popular sovereignty. They have remarked on the "inadequacy of our constitutional theory of government"4 and urged us to acknowledge "a new foundation on which, step by step, our constitutional jurisprudence will need to be rethought."s This would include a new theory of judicial review.6 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 Itfrozen continent"7 admittedly presented a fertile field for those commentators who have complained of our "impoverished

Professor of Law, University of . 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. 1 Australian Capital Television Pty Ltd v Commonwealth (ACTV) (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. 2 B Fitzgerald, "Proportionality and Australian Constitutionalism" (1993) 12 U Tas L Rev 263 at 285. See also L McDonald, "The Denizens of Democracy: The High Court and the 'Free Speech' Cases" (1994) 5 PLR 160 at 177 (a "revolutionary change to traditional legal theory"). 3 AR Blackshield, "The Implied Freedom of Communication", in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 232 at 235. See also ibid at 232, 242; L McDonald, above n 2 at 161 ("a 'switch in time' in constitutional theory"), 162 (Ita paradigm shift in the fundamental principles which inform constitutional interpretation"), 179 ("a paradigm shift in the nature of the judicial role"), 182 ("a new paradigm of constitutional interpretation"), 197 ("paradigm shift"). 4 P Finn, "A Sovereign People, A Public Trust", in PD Finn (ed), Essays on Law and Government: Volume 1: Principles and Values (1995) 1 at 13. S AR 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 G Sawer, Australian Federalism in the Courts (1967) at 208. 2 Federal LauJ Review Volume 26

constitutional culture",8 bemoaned the absence of "an underrmg [constitutional] philosophy or vision"9 or even "an overall framework",1 and queried the appropriateness of our existing "constitutional concepts, ideals and values ... to the of the late twentieth century".11 Our constitutional framers have even been criticised for adopting features of the United States only "at a secondary machinery level" but "nothing of [its] spirit";12 or, as another commentator ~ut it, "drawing on its most conservative, least inspiring features - jettisoning the rest". 3 The original United States Constitution's solicitude for slavery was presumably overlooked.14 Moreover, the revolution in constitutional interpretation has not been confined to academia but extends to the High Court, some of whose justices - especially Deane and Toohey JJ - were indeed responsible for initiating it. It has resulted in the outcome of constitutional litigation in the High Court becoming highly unpredictable,1S with some justices appearing to see themselves more as constitutional philosophers than as judges. Long established constitutional doctrines are jettisoned on occasion as long as a merely plausible - rather than convincing or even persuasive ­ argument can be constructed for doing so.16 Too often High Court justices appear to overlook the vital truth that constitutionalism and the rule of law are as concerned with the reasoning whereby conclusions are reached as with those outcomes themselves.17 Why has this change in constitutional interpretation occurred? What constitutional earthquake has caused the very foundations of Australian constitutional orthodoxy to be undermined? Many factors have no doubt contributed to this constitutional sea-

8 B Galligan, "Realistic 'Realism' and the High Court's Political Role" (1989) 18 FL Rev 40 at 47. 9 C Saunders, "The Constitutional Framework: Hybrid, Derivative but Eventually Australian", in J Power (ed), Public Administration in Australia: A Watershed (1990) 106 at 130. 10 Ibid. 11 C Sampford, "The Need for Australian Constitutional Theory" (1994) 3 Griffith L Rev 268 at 268. 12 C Howard, "The Land of the Free and the Prison Abroad", Times on Sunday 12 July 1987 at 15. 13 N McLachlan, Waiting for the Revolution: A History ofAustralian Nationalism (1989) at 168. 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 with ACTV (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 Commonwealth (1992) 174 CLR 455 per Brennan, Deane, Toohey and Gaudron JJ. (Although, with respect, it is doubtful whether some of these judgments are even plausible.) It must be conceded, of course, that opinions will differ as to the quality of an argument. 17 See G Winterton, "Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?", in C Sampford and K Preston (eds), Interpreting : Theories, Principles and Institutions (1996) 121 at 145. 1998 Popular Sovereignty and Constitutional Continuity 3

change,18 but the most important would appear to be concern to afford the rights of Australians some constitutional protection.19 The High Court has probably been influenced by several considerations, including knowledge of comparative constitutional experience which reveals that Australia is now the only Western nation to afford its citizens no judicial protection against legislative interference with their rights (apart from those expressed or implied in the Constitution),20 together with the unlikelihood of Australia adopting a constitutional or even a statutory Bill of Rights in the foreseeable future. It has rightly been noted that "American constitutionalism in the twentieth century changed from one of'powers to one of rights".21 Australia has a lon~ tradition of following in America's footsteps in constitutional, as in other, matters. The apparent catalyst for this transformation was the supposed advent of popular sovereignty, but whether it was really the cause, or merely an excuse, for the alleged "paradigm shift" in constitutional thinking may be debated.

POPULAR SOVEREIGNTY Although Australian popular sovereignty had been acknowledged earlier,23 it was the recognition accorded that concept by several High Court justices since 1992 which led to the claims of constitutional "revolution" and "paradigm shift" noted earlier. Deane and Toohey JJ noted that "the powers of government belong to, and are derived from, ...

18 See G Lindell, "Recent Developments in the Judicial Interpretation of the Australian Constitution", in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 1 at 38-39. 19 J Toohey, "A Government of Laws, and Not of Men?" (1993) 4 PLR 158 at 166-170; J Doyle, "Constitutional Law: 'At the Eye of the Storm'" (1993) 23 UWAL Rev 15 at 29. 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 Quarterly 189 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 Co 304 US 144 at 152-153 n 4 (1938); H Wechsler, "Stone and the Constitution" (1946) 46 Columbia L Rev 764 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) 16 FL Rev 29 at 37 and 49. See also L Zines, quoted n 42 below. For pre-Australia Act recognition of popular sovereignty, see G Winterton, Monarchy to Republic: Australian Republican Government (1986) at 24; 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 contrast Bistricic v Rokov (1976) 135 CLR 552 at 566 per Murphy J: "The original authority for our Constitution was the Parliament, but the existing authority is its continuing acceptance by the Australian people". 4 Federal LauJ Review Volume 26

the people",24 but the most explicit statement of popular sovereignty was that of Mason CJ: [T]he Australia Act 1986 (UK) marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people.25 Deane J amplified his earlier view two years later, remarking that The present legitimacy of the Constitution ... lies exclusively in the original adoption (by referenda) and subsequent maintenance (by acquiescence) of its provisions by the people.26 A further two years passed before McHugh J endorsed the view of Mason CJ that since the Australia Act 1986 (UK) "the political and legal sovereignty of Australia now resides in the people of Australia".27 Among High Court justices, only Dawson J has reiterated the orthodox position that, whatever "political theory" might suggest, "[t]he legal foundation of the Australian Constitution is an exercise of sovereign power by the Imperial Parliament".28 The other justices have not commented directly on the issue,29 so that the view that the Commonwealth Constitution is founded on popular sovereignty has not technically been adopted by the High Court as a whole. Nevertheless, there is no reason to doubt that the views of Mason CJ, Deane, Toohey and McHugh JJ would be endorsed by most, if not all, of the current justices. "Sovereignty" is a notoriously ambiguous concept. It appears in this context to be used in two rather different senses, the first referring to the source from which the Constitution derives its authority, and the second to the location of the power to amend the Constitution. Both concepts were employed by Deane J in his observations quoted above,3D and are noted by McHugh J in remarking that "ultimate sovereignty resides in the body which made and can amend the Constitution".31 "On that view", his Honour commented, [T]he sovereignty of Australia originally resided in the United Kingdom Parliament. Since the Australia Act 1986 (UK), however, the sovereignty of the Australian nation has

24 Nationwide News (1992) 177 CLR 1 at 72 (emphasis added), essentially repeated by Deane J in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 180, and impliedly adopted by Toohey J in McGinty v (McGinty) (1996) 186 CLR 140 at 201. For an earlier comment to this effect, see Breavington 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, text at n 32. 28 ACTV (1992) 177 CLR 106 at 181. See, likewise, M Moshinsky, "Re-enacting the Constitution in an Australian Act" (1989) 18 FL Rev 134 at 136 and 144. 29 Compare McGinty (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). 1998 Popular Sovereignty and Constitutional Continuity 5

ceased to reside in the Imperial Parliament and has become embedded in the Australian people. Only the people can now change the Constitution. They are the sovereign.32 McHugh fs reference to "the body" (singular) "which made and can amend the Constitution" suggests that the two powers - to make and to amend - will be vested in the same body, but that is not necessarily the case, as is demonstrated by countries such as the United States and Japan, where the body which adopted the original constitution is not the body empowered to amend it.33 This is, and indeed always was, the case in Australia, although the position here is obscured by the facts that the Australian electors approved the original draft Constitution (with the exception of s 74) - albeit without legal effect - and that, until 1986, the United Kingdom Parliament retained a concurrent, but (after 1939) not superior,34 power to amend the Constitution. Had Australia followed the Canadian precedent of securing the enactment of its Constitution at Westminster without the prior approval of the colonial electors, it would not now be arguable that Australia enjoys popular sovereignty in the first sense noted above. Since the appropriate principles of constitutional interpretation are at least influenced by views as to the location of ultimate sovereignty, the application to Australia of the two senses of "popular sovereignty" warrants closer examination. Source of authority At least until the United Kingdom Parliament renounced its power to legislate for Australia,35 the Commonwealth Constitution could claim two sources of authorigr, one political and the other initially both legal and political, but in time only lega1.36 Since the Australian electors approved the draft Constitution (which included a different s 74) in 1899 and 1900 (as noted in the Preamble and covering clause 3), the Commonwealth Constitution drew at least some of its political authority from its approval by the Australian people (or at least electors). A leading historian has described "the quintessential republican moment in our history" whereby "the Australian people were more involved in the making of their national constitution than the people of any of the other great democracies" as "one of the most remarkable features of our history ... [A]n amazing process ... Quite un-British".37 However, in 1901 neither the British government nor the Australian people and courts would have considered approval by the Australian electors in itself an adequate legal foundation for the Constitution, which required supremacy over existing Imperial legislation

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 ofthe Law ofthe Constitution (10th ed 1959) at 73-76. 37 J Hirst, "History and the Republic" (1996) 40(9) Quadrant 38 at 42. 6 Federal LauJ Revie-w Volume 26

applying in Australia by paramount force. 38 Hence, the Constitution's legal authority was derived from enactment by the Imperial Parliament39 which also, in the context of Australia's status as a self-governing colony in the , imbued it with considerable political authority as well. This source of political authority diminished, of course, with increasing Australian autonomy and had ended long before 1986. The British Parliament's renunciation of power in 1986 was prospective only: No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to the Commonwealth, to a State or to a Territory as part of the law of the Commonwealth, of the State or of the Territory.40 This abdication of power for the future had no effect on the legal force of existing British legislation applying in Australia by paramount force, as the Australia Act itself recognised in specifically empowering the States to legislate repugnantly to such legislation.41 Hence, at least as a matter of logic, it is difficult to see how the Australia Act could have affected the legal authority which the Constitution derived from enactment at Westminster.42 As Dawson J noted six years after the Australia Act: "The legal foundation of the Australian Constitution is an exercise of sovereign power by the Imperial Parliament."43 However, it is naturally considered somewhat unsatisfactory for the legal authoriZ of the Constitution of an independent nation to be derived from an external source. 4

38 See, eg, 0 Dixon, Jesting Pilate (1965) at 44 and 200; WH Moore, The Constitution of the Commonwealth ofAustralia (2d ed 1910) at 66-67. 39 o Dixon, ibid and WH Moore, ibid. G Lindell, above n 23 at 30-33 and 49; ACTV (1992) 177 CLR 106 at 181 per Dawson J. 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 the Australia Acts have 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 the Statute ofWestminster and the Australia 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 HV Evatt, The Royal Prerogative (1987), CI at C9-10. Why then are they binding? "[The 'basic constitutional instruments' of Australia, Canada and New Zealand] were law 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). 1998 Popular Sovereignty and Constitutional Continuity 7

Deane Jhas frankly acknowledged that deriving the authority of the Constitution from a compact between the Australian people, rather than the past authority of the United Kingdom Parliament under the common law ... [offers] a more acceptable contemporary explanation of the authority of the basic law of the Constitution.45 It might be argued that there is little point in distinguishing between the legal and political sources of constitutional authority, so that the consent of the Australian people now provides the legal, as well as political, foundation for the authority of the Australian Constitution. But one ought to be wary of breaking the chain of legal authority or legitimacy, however obsolete it might seem to be, for the extra-legal realm is a world of legal fiction46 in which there are no boundaries except, practically, political power and, theoretically, the limits of imagination. This is an irresistible lure to some philosophically inclined scholars and judges, as is illustrated by speculation, noted below, as to possible consequences of popular sovereignty for constitutional interpretation. The danger in severing the legal chain is demonstrated by considering the identity of "the people" upon whose consent the Constitution's authority is said to rest. There would seem to be two possibilities: the colonial electors who approved the draft Constitution or the present Australian people who demonstrate their acceptance of the Constitution by complying with its provisions and living peaceably under it.47 But what compels the latter, the present ultimate sovereigns, to exercise their "popular sovereignty" in accordance with s 128 of the Constitution? The extra-legal realm can offer no security against revolutions and constitutional convulsions - which need not necessarily be violent - as fanciful as they may seem in present-day Australia.48 Ultimately, only the rule of law offers security against lawless power, and this surely applies even more to the Constitution's foundations than to its superstructure. Moreover, there is no national indignity in acknowledging legal continuity; as a leading British commentator has noted, "it is surely a confusion to identify continuity between an old and a new system with subordination of the new institutions to the 0Id".49 The continuing legal authority of our Constitution derives from its original enactment at Westminster and subsequent ret~on (with amendments) by those empowered to amend it, which includes theAustralian electors. But the latter derived their legal authority from the former. The amendment power Whatever uncertainty may surround popular sovereignty as the Constitution's source of legal authority, Australia clearly enjoys popular sovereignty in the second sense since constitutional alteration requires the consent of the electors. The constitutions of

45 Breavington (1988) 169 CLR 41 at 123. 46 Compare L Zines, The High Court and the Constitution (4th ed 1997) at 396. 47 Compare Theophanous (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) 16 F L Rev 223. 49 G Marshall, above n 30 at 63. 8 Federal Law Review Volume 26

many nations claim to be based upon popular sovereignty, even though the people played no direct role in the constitution's adoption and constitutional amendment occurs without their direct consent given by referendum. Countries of which this is true include the United States, India, Germany, Portugal and Greece, where amendment is effected by legislative super-majorities or by other representative bodies (as in the United States), so that popular sovereignty is exercised indirectly. Yet, ironically, the Australian Constitution, which claims neither to be based upon popular sovereignty nor adoption by "We the People", can justifiably claim a basis in popular sovereignty since the Australian people directly approved its adoption and have controlled its content since 1901. However, it must be borne in mind that others share in that control. Section 128 of the Constitution vests the constitutional amendment power in both the electors and the Commonwealth Parliament, which must first pass a Constitution Alteration Bill (either by both Houses or by one House twice with an interval of 3 months) before it is submitted to referendum. A decade ago, a leading constitutional scholar considered the "ultimate source of Australian sovereignty" to be: [T]he Commonwealth Parliament acting with the approval of the ~eople expressed at referenda by the majorities specified in sec. 128 of the [Constitution]. 0 This reference to s 128's special (and varying) majorities highlights the complexity in identifying "the people" in whom ultimate sovereignty lies.51 As Harrison Moore noted long ago, s 128 reflects three constitutional principles: parliamentary government and federalism, as well as democracy.52 Of course, prior to 1986, British legislation provided an alternative route for amending the Commonwealth Constitution.53 But the United Kingdom Parliament's power to amend the Constitution was largely theoretical and was never used, at least not to effect a direct amendment. Hence it is difficult to see why its formal abdication in 198654 should have been the catalyst for recognition of Australian popular sovereignty, which has surely existed since 1901. Moreover, if the United Kingdom Parliament's theoretical power to amend the Constitution detracted from Australian popular sovereignty prior to 1986, then surely the inheritance of that power by the Commonwealth Parliament acting "at the request or with the concurrence" of all State Parliaments55 must equally impair it now.56 One commentator expressed this strongly:

50 G Sawer, "Government and Law", in JOB Miller (ed), Australians & British: Social and Political Connections (1987) 45 at 75. 51 See G JCraven, "A Few Fragments of State Constitutional Law" (1990) 20 UWAL Rev 353 at 360-361. 52 WH 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 0 Gilbert, "Section 15 of the Australia Acts: Constitutional Change by the Back Door" (1989) 5 QUTLJ 55. 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 1998 Popular Sovereignty and Constitutional Continuity 9

[W]e now have two grundnorms, not one. Section 128 of the Constitution and s.15 of the British version of the Australia Act now exist side by side as parallel grundnorms. Until, that is, one is used to change the other.57 However, even if s 128 of the Constitution - which provides that the Constitution "shall not be altered" exc~t in the specified manner - does not legally limit s 15 of the Australia Act 1986 (UK), it surely does so as a matter of political reality. Practically speaking, s 128 represents the sole means of amending the Constitution. A leading constitutional authority has noted that "there is no reason to limit the doctrine of sovereignty of the people to a period when British sovereignty over Australia ceased",59 which is supported by informed commentary prior to 1986. At least since the Commonwealth adopted the Statute of Westminster60 - and in reality since 1901 - Australia's constitutional path has been determined by the Australian people.61 A quarter-century before the Australia Act, Sir Kenneth Wheare observed that: Australians might argue that, irrespective of the fact that the Australian constitution obtained force of law in 1900, through its being enacted by the parliament of the United Kingdom, it possesses force of law today through its acceptance by Australians for sixty years or more. To explain why they accept it would be a complicated matter. But, in the eyes of Australians, their constitution was framed by their representatives in a series of conventions in Australia, it was accepted by these representatives, legalized at Westminster, and thereafter provided the framework of the system of government for the country. It can be altered by Australians when they think fit. If, by some means, the constitution could be deprived of its quality of a British act, Australians would still regard it as having force of law. If the constitution obtained its life in the seed bed at Westminster, and was transplanted to Australia, it has struck root in the Australian soil, and it owes its life now to Australia and not to Britain.62 The destiny of the Commonwealth Constitution has lain since Federation in the hands of the Australian people acting directly through referenda and indirectly through their representatives in the Commonwealth Parliament.63 Since the Constitution has long been based upon popular sovereignty, it is difficult to view the formal abdication of British legislative power over Australia as particularly significant from a

Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution" (1994) 16 Syd L Rev 213 at 218. 57 CD 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 the Australia 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 L] 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 RD Lumb, "Fundamental Law and the Processes of Constitutional Change in Australia" (1978) 9 F L Rev 148 at 154-158. (However, the present writer would not endorse all of Professor Lumb's views: see G Winterton, above n 23 at 128.) 62 KC Wheare, The Constitutional Structure of the Commonwealth (1960) at 108 (emphasis added). 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. 10 Federal Law Review Volume 26

Commonwealth constitutional perspective. (It had much greater significance for the State Constitutions.) While a leading judge's view that the era of the Mason Court saw a "shift in our constitutional grundnorm"64 may be accepted as merely overstating somewhat the High Court's belated acknowledgement of the popular sovereignty which has long underlain our Constitution, the notion that Australia has recently experienced a "radical relocation of sovereignty"65 or undergone some sort of constitutional "revolution"66 grossly exaggerates the impact of the Australia Act 1986 (UK). If this supposed constitutional turmoil followed the United Kingdom Parliament's abdication of a largely theoretical power to amend our Constitution, what effect, one wonders, might the advent of an Australian republic have on constitutional interpretation, since that reform would actually involve alteration of the constitutional text including, most likely, the preamble? Indeed some commentators have already sought to draw constitutional inferences from the republican elements of our existing Constitution.67

POPULAR SOVEREIGNTY AND IMPLIED RIGHTS The High Court's acknowledgement of popular sovereignty occurred in the context of recognition of a constitutionally-implied freedom of political discourse derived from the Constitution's adoption of representative government in ss 7 and 24.68 This implied freedom, together with a generous, libertarian interpretation of the separation of judicial power,69 represents a considerable expansion in constitutionally protected rights and freedoms in Australia. As a leading judge has noted, since 1992 we have witnessed "a profound change in the Court's approach to governmental power and citizens' rights."70 This is exemplified not only by the 1ireat cases recognising and expounding the freedom of political discourse - ACTV, Theophanous72 and Lange73 - but also by cases such as Leeth74 and Kable75 in which justices such as Brennan J (in Leeth) and McHugh and Gummow JJ (in Kable) adopted libertarian positions difficult to reconcile with the constitutional orthodoxy they generally espoused.

64 K Mason, "Citizenship", in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 35 at 36. Mahoney P has similarly remarked that the Australia Act's "effect and ... purpose" was "to alter the grundnorm of the ": 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; JM Williams, "'With Eyes Open': Andrew Inglis Clark and our Republican Tradition" (1995) 23 F L Rev 149; JM Williams, "Revitalising the Republic: Lionel Murphy and the Protection of Individual Rights" (1997) 8 PLR 27. But see G Williams, "A Republican Tradition for Australia?" (1995) 22 F L Rev 133. 68 See n 1 above. 69 See, generally, G Winterton, "The Separation of Judicial Power as an Implied Bill of Rights", in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 185. 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. 1998 Popular Sovereignty and Constitutional Continuity 11

A leading constitutional lawyer has remarked that: The growing acceptance of popular sovereignty as the legal as well as political foundation for the Constitution ... led to greater emphasis on the individual [in] the constitutional system. In tum, this contributed directly to the cases in which the High Court drew implied protection for political rights from provisions in the Constitution which provide a framework for representative government. It may have played some part also in ... Mabo. 76 ' This raises the question: To what extent can implied rights be derived from popular sovereignty itself? The argument for implying rights from popular sovereignty is predicated upon a Lockean view of government and has been stated succinctly by Sir Anthony Mason: [O]nce the authority for the Constitution is seen to stem from the people and ... power is seen to be exercised for and on behalf of the people, then it is possible to argue that the Constitution contemplates that the citizens of Australia will enjoy rights of citizenship.77 This begs the question, of course, as to what the supposed "rights of citizenship" might be, so it is hardly surprising that Sir Anthony concluded that, apart from chapter III, the Constitution was "[unlikely] to prove fertile soil for the implication of fundamental rights".78 Others, however, have given the argument greater credence. Thus Deane and Toohey JJ considered that an implied right of equality could be inferred from (Rmong other things) the agreement of the Australian people "to unite in the Commonwealth under the Constitution",79 and Toohey J went even further in suggesting, extra­ judicially, that over time "an implied 'bill of rights'" might be derived from the Australian people's presumed intention not to grant power to "[invade] fundamental common law liberties".80 The essential irony in unelected judges invalidating legislation enacted by the people's elected representatives on the basis of supposed rights which the people have not thought fit to express is highlighted by a leading rights enthusiast's support for

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 ans~er 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 Constttution- in a Modern Liberal Democracy", in C Sampford and K Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (1996) 13 at 30. 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 also Polyukhovich 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." 12 Federal Law Review Volume 26

"[t]he idea that judges should have a relationship with the sovereign people".81 What sort of relationship might this be? He further maintained that "the High Court has its own direct responsibility to the people for ensuring that [their sovereign] wishes are honoured".82 But how is this "direct responsibility" to be enforced? And by whom? As Leslie Zines has aptly remarked, such notions would "transfer power from institutions over which the electors have some control" - the political branches of government ­ to a body over which they have none, the High Court.83 In truth, popular sovereignty in itself tells us nothing regarding the rights of citizens; it "does not of itself delineate the values to be respected in the governing of our society".84 The rights and freedoms of citizens are determined by the sovereign's handiwork, the Constitution, wherein the people may choose to retain a multitude of rights, as in the United States, or relatively few or even none, by adopting wholly or partially the principle of parliamentary supremacy. A recent commentator has rightly remarked that "there is no necessity binding the vox populi to support for human rights",85 noting that popular sovereignty "has tended to an association with some of the more unsavoury ideologies and regimes of the past two centuries".86 Whether or not the people intended to retain rights and freedoms and, if so, their content can be determined only through interpreting the instrument through which they have spoken - the Constitution - in the light of lamong other things) the intention of its framers and our constitutional traditions, including the common law. The Australian constitutional framers deliberately declined to adopt a bill of rights, especially "equal protection" and "due process" clauses,87 and the Constitution was adopted in a constitutional environment in which the Imperial Parliament had expressly rejected the notion of fundamental common law principles beyond the reach of colonial legislatures.88

CONSTITUTIONAL CONTINUITY The Commonwealth Constitution is a "unique synthesis"89 of many influences, principally American, British, colonial Australian and, in regard to its method of amendment, Swiss. It is unnecessary here to quantify the relative contributions, but Australia's federal system and the constitution, powers and inter-relationship of the Commonwealth Parliament and judiciary drew heavily on the United States Constitution, while the structure of the Commonwealth executive and its system of

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 DA Smallbone, "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 268. 86 Ibid at 269. 87 See J A La Nauze, The Making of the Australian Constitution (1972) at 229-232; A Mason, above n 78 at 28-29. 88 See the Colonial Laws Validity Act 1865 (UK), s 3, discq.ssed in G Winterton, above n 17 at 134-135. 89 G Sawer, "Constitutional Laws", in GW Paton (ed), The Commonwealth of Australia: The Development ofits Laws and Constitution (1952) 38 at 38. 1998 Popular Sovereignty and Constitutional Continuity 13

under reflect British practice as modified by Australian colonial experience. The Constitution has naturally been interpreted against the background of these influences,90 so that it has rightly been treated as inscribed on a palimpsest rather than a tabula rasa.91 This is especially evident in regard to chapter II, which mentions neither the Prime Minister nor Cabinet and read literally conveys the misleading impression that the executive government rests largely in the hands of the Governor-GeneraI.92 It clearly needs to be interpreted against the background of the conventions of responsible government under the Crown, pursuant to which the Commonwealth has, for example, inherited the prerogative powers, rights and immunities of the British Crown and the conventions governing exercise of the Crown's reserve powers.93 However, the notion that Australia has recently experienced a "revolution" or "paradigm shift" in constitutional interpretation based upon the supposedly recent advent of popular sovereignty could prove extremely destabilising to Australian constitutional law. Were the Constitution to be construed as "a living force"94 reflecting only "the will and intentions" of the contemporary Australian people,95 unencumbered by the "dead hands"96 of the constitutional framers or the Australian people of 1900 and heard only by the justices of the High Court (or, more accurately, a majority of them), long-established constitutional doctrines and interpretations would be imperilled. The prospect of such methods of constitutional interpretation being adopted by a High Court majority has receded with recent changes in the Court's composition, although such views may well revive in the future. But there is no justification for departing from well-established principles of constitutional interpretation, pursuant to which constitutional rights and freedoms must either be expressed in the Constitution or derived by necessary implication from the constitutional text or structure.97 As the reasoning of Mason CJ and McHugh J has demonstrated, orthodox methods of constitutional interpretation are not incompatible with recogt!ition that the Constitution is founded upon the ultimate sovereignty of the people.98 Moreover, the Australian people have controlled their constitutional destiny since 1901. In short, there has been no constitutional "revolution" or "paradigm shift", but rather remarkable continuity.

90 See, eg, Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393 at 411-412 per Isaacs J. 91 Compare Vallance v R (1961) 108 CLR 56 at 76 per Windeyer J. 92 See D Horne, His Excellency's Pleasure: A Satire (1977). 93 See G Winterton, Parliament, the Executive and the Governor-General: A Constitutional Analysis (1983), especially chs 1-3. 94 See Theophanous (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) 24 F L Rev 133 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 Constitutional Interpretation" (1995) 18 UNSWLJ 237 at 249. 98 See ACTV (1992) 177 CLR 106 at 136 and 138 per Mason CJ; McGinty (1996) 186 CLR 140 at 230-236 and 237 per McHugh J; G Lindell, above n 23 at 44 and 49.