Sovereignty of the People — the New Constitutional Grundnorm?
| Published date | 01 March 1998 |
| DOI | 10.22145/flr.26.1.7 |
| Author | HarleyG A Wright |
| Date | 01 March 1998 |
| Subject Matter | Article |
SOVEREIGNTY
OF
THE PEOPLE -THE NEW
CONSTITUTIONAL GRUNDNORM?
Harley
GAWright*
[I]t
was
natural
once the conflict
with
Britain reached the stage
where
independence
was
the
only real alternative to submission
that
the
men
of the Revolution
should
tum
to
constitution making.1
INTRODUCTION
After 1992, "the
year
that
was"2
in
constitutional law,
it
appeared
to
many
that
the
High
Court
had
adopted
a
new
grundnorm of constitutional interRretation: "parliamentary
sovereignty"
was
replaced
with
"sovereignty of the people".3 This change
was
most
marked
in
the "free speech" cases4which
appeared
to rely
upon
aconcept
that
lawyers
in
the
Westminster tradition
had
long
been
proud
to
do
without, namely,
individual
rights. While
some
celebrated
with
promises of a
new
sense of citizenship
and
a
revitalised democratic tradition,S others
saw
these promises as
empty
and
warned
that
judicial implication of rights threatened positivist legal values
and
judicial
independence.6
1
2
3
4
5
6
BA (Hons) /
LLB
(UNSW). I
would
like to
thank
Sir
Anthony
Mason
and
Professor George
Winterton
for giving
me
their views
on
"sovereignty of the people". I
would
also like to
thank
those
who
provided
helpful comments
on
an
earlier
draft
of this article:
the
anonymous
referee, Professor Michael Chesterman, Professor Conal
Condren,
Professor
Robert Post,
Dr
Helen
Pringle, Alida Stanley
and
Professor George Winterton.
BSchwartz, The Great Rights
of
Mankind: AHistory
of
the American Bill
of
Rig~ts
(1992)
at
65.
BFitzgerald, "Proportionality
and
Australian Constitutionalism" (1993) 12 UTas LR 263
at
276.
DSmallbone, "Recent Suggestions of
an
Implied 'Bill of Rights'
in
the
Constitution,
Considered
as
Part
of aGeneral
Trend
in
Constitutional Interpretation" (1993)
21
FLRev
254
at
258; LMcDonald, "The Denizens of Democracy: The
High
Court
and
the
'Free
Speech' Cases" (1994) 5PLR 160
at
182; A R Blackshield, "The Implied
Freedom
of
Communication"
in
GLindell (ed), Future Directions
in
Australian Constitutional Law (1994)
232
at
242; MDetmold, "The
New
Constitutional Law" (1994) 16
Syd
LR 228.
Australian Capital Television Ply Ltd vCommonwealth (ACTV) (1992) 177 CLR 106
and
Nationwide News
Pty
Ltd vWills (1992) 177 CLR 1.
For example, LMcDonald, above n3, A R Blackshield, above n 3
and
MDetmold, above
n3.
NDouglas, "Freedom of Expression
Under
the Australian Constitution" (1993) 16
UNSWL/
315; TCampbell, "Democracy,
Human
Rights,
and
Positive Law" (1994) 16
Syd
LR 195; A
166 Federal Law Review
Volume
26
Although
recent decisions
have
not
favoured
an
expansive interpretation of
the
early free speech cases, discerning aclear
trend
in
this area is difficult.
On
the
one
hand,
the
McGinty7 decision rejected the
view
that
arepresentative democracy
required
numerical equality
in
Commonwealth electoral divisions. McGinty has
been
interpreted
as
"a
turning
point
in
the
High
Court's
approach
to implied freedoms"8
and
as
"a
reaffirmation of orthodox principles of Constitutional interpretation".9 Yet,
on
the
other
hand,
the
unanimous
judgment
in
Lange
10 refused to overrule the
most
radical of
the free speech decisions,
Theophanous.
11 According to
McHugh
J,
Lange
means "[i]t is
not
open
to
doubt
that
the Constitution protects the freedom of 'the people of the
Commonwealth'
...
to communicate
with
each other
...
"
and
that
"the scope of
that
freedom is
at
least as
great
as
that
recognised
in
the
two
earlier cases [ACTV
and
Theophanous]
".12
Arguments
based
upon
popular
sovereignty
have
been
most
directly raised
in
Levy
vState
of
Victoria.
In
that
case, Victorian regulations preventing protesters from being
in
the vicinity
where
duck
shooting
was
taking place
were
challenged as contrary to
an
implied
freedom of political discourse.
In
presenting the first of three submissions for
the plaintiff,
Mr
Castan
QC
argued
that
"the ultimate sovereignty of the people of
Victoria
...
limits legislative
power
within
the State".13 However, the potential of the
Levy case to resolve
many
of the uncertainties
surrounding
popular
sovereignty
was
not
realised; the facts
were
apparently
not
strong
enough
to compel the Court's
resolution of these issues.
14
As
an
interpretive
norm
of the Constitution, "sovereignty of the people"
has
ramifications
beyond
the fate of decisions immediately before the Court.
It
raises
broad
philosophical, historical
and
political issues concerning the relationship of the judiciary
to
the
legislative
branch
of government. This article examines "sovereignty of the
people", investigating
whether
it
is,
or
should
be, a
guiding
norm
in
the interpretation
of the Constitution. The first
part
of this article surveys the theoretical
and
philosophical context
in
which debates
surrounding
the influence of
popular
sovereignty are conducted. The second
part
examines the
use
of "popular sovereignty"
in
Australian
constitutional jurisprudence, from the early dissenting
judgments
of
Murphy
Jto the majorities
in
the "free speech" cases of the 1990s. The
third
part
of the
article assesses, against the
background
of Australia's constitutional
and
political
history,
whether
"sovereignty of the people"
should
be the
new
grundnorm of
Australian law.
7
8
9
10
11
12
13
14
Fraser,
"False
Hopes:
Implied
Rights
and
Popular
Sovereignty
in
the
Australian
Constitution" (1994) 16
Syd
LR
213.
McGinty
vWestern Australia (1996) 186 CLR 140.
GWilliams,
"Sounding
the
Core
of
Representative Democracy:
Implied
Freedoms
and
Electoral Reform" (1996) 20 MULR 848
at
860.
DBall, "The
Lion
that
Squeaked:
Representative
Government
and
The
High
Court" (1996)
18
Syd
LR
372
at
379.
Lange vAustralian Broadcasting Corporation (1997) 145 ALR 96.
Theophanous vThe Herald &Weekly Times Ltd (1994) 182 CLR 104.
Levy
vVictoria (1997) 146 ALR 248
at
273 footnote 105.
Levy,
transcript
of
proceedings,
High
Court,
6
August
1996
at
5.
Levy
is
discussed
further
in
Part
II
of
this article.
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