Popular Sovereignty and the Nationhood Power

AuthorGeorge Duke
Publication Date01 September 2017
Date01 September 2017
George Duke*
The principle that the constitution derives its ultimate authority from the sovereignty of
the people and the nationhood power were both developed by the High Court in the
context of Australias emergence as an independent nation. Although this shared
provenance suggests the possibility of a more significant connection between the two
doctrines, such a connection has not been developed in Australian constitutional
jurisprudence. The heavily criticised judgment of French J in the Tampa decision appears
to allude to such a connection, but the relevant reasoning is ambiguous and either left
undeveloped or implicitly rejected in subsequent High Court cases. This paper critically
examines the relationship between popular sovereignty and the nationhood power on
two levels. In the first instance, the paper investigates whether it is even coherent to seek
to provide a normative ground for the nationhood power in popular sovereignty. The
paper then considers whether such a justification is consistent with Australian
constitutional doctrine. Unsurprisingly, the weight of constitutional principle and
doctrine supports the general subjection of the executive to prior legislative
authorisation, rather than a robust non-statutory executive power grounded in popular
sovereignty. While this conclusion is predictable in an Australian context, a detailed
examination of the relationship between the weaker conception of popular sovereignty
operative in the reasoning of High Court and the nationhood power nonetheless reveals
some important underlying assumptions of current doctrinal orthodoxy.
The r ise of modern constitutionalism is closely associated with the principle that the
authority of political and legal institutions ultimately derives from the people.
This is
not only because popular sovereignty aligns with prevailing democratic conceptions of
* Senior Lecturer, School of Humanities and Social Sciences, Faculty of Arts and Education,
Deakin University. I am grateful to the following mentors, friends and colleagues for helpful
discussions, comments and suggestions: Carlo Dellora, Simon Evans, Constance Youngwon
Lee, Benjamin B Saunders, Peta Stephenson, Lael Weis and Thomas Wu.
Martin Loughlin, The Foundations of Public Law (Oxford University Press, 2010) 224; Dieter
Grimm, The Achievement of Constitutionalism and its Prospects in a Changed World’ in
Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism? (Oxford
University Press, 2010) 7.
416 Federal Law Review Volume 45
the origins of justified public power. Appeals to popular sovereignty are also consistent
with the assumption that the status of the constitution as higher law requires recourse
to an extra-legal non-positive source of authority.
The theory that higher legal authority ultimately derives from the people seems most
compelling in relation to originating written constitutions. In historical terms, the post-
revolutionary constitutions of the United States and France are exemplary in this
It has been argued that the ultimate status of popular sovereignty is more
questionable in the case of the British constitutional system. The British constitutional
system resulted from long historical developmentrather than a single moment of
founding encapsulated in a written documentand has tended to valorise common law
incrementalism and parliamentary sovereignty.
Application of popular sovereignty to
a post-colonial polity like Australia also appears less straightforward. The
Commonwealth Constitutionwhile nourished by American influenceswas heavily
determined by British political arrangements and the product of an enactment by the
Imperial Parliament.
Subsequent to the passage of the Australia Acts in 1986which was understood as
the definitive final step in Australias long march towards national independence
several High Court Justices nonetheless began to assert, in express terms, that popular
sovereignty was the ultimate foundation for the authority of the Commonwealth
In a series of implied freedom of political communication cases in the
1990s the relevant High Court authorities, while acknowledging that the Constitution
came into effect as an enactment of the Imperial British Parliament, articulated a modern
popular foundation for the Constitutions status as supreme law. In the words of Mason
CJ, the Australia Acts marked the end of the legal sovereignty of t he Imperial
Parliament and recognised that ultimate sovereignty resided in the Australian people.
Mason CJs argument that ultimate sovereignty now vested in the Australian people
was supported by Geoffrey Lindells scholarship on the constitutional implications of
Dieter Grimm, Sovereignty: The Origin and Future of a Political Concept (Belinda Cooper trans,
Columbia University Press, 2015) 69; Hans Kelsen, Professor Stone and the Pure Theory of
Law (1965) 17 Stanford Law Review 1128, 1141.
Marbury v Madison, 5 US (1 Cranch) 137, 176 (1803); EJ Sieyès, Quest-ce que le tiers-état?
(Editions du Boucher, 1789) 50, 53.
Martin Loughlin, Constituent Power Subverted: From English Constitutional Argument to
British Constitutional Practice in Martin Loughlin and Neil Walker (eds) The Paradox of
Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, 2007)
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 70 (Deane and Toohey JJ); Australian Capital
Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 138 (Mason CJ) (‘Australian Capital
Television’); Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104, 1723 (Deane J);
McGinty v Western Australia (1996) 186 CLR 140, 236 (McHugh J).
Australian Capital Television (1992) 177 CLR 106, 138. The implied freedom of political
communication cases precipitated some extravagant rhetoric, including references to a
fundamental paradigm shift and glorious revolution. See George Winterton, Popular
Sovereignty and Constitutional Continuity (1998) 26 Federal Law Review 1, 1 and the
references cited there.

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