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 New South Wales. 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 Australia of the late twentieth century".11 Our constitutional framers have even been criticised for adopting features of the United States Constitution only "at a secondary machinery level" but "nothing of [its] spirit";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 Constitutions: 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 United Kingdom 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 ..