The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited
| Author | Michael Wait |
| Published date | 01 March 2001 |
| Date | 01 March 2001 |
| DOI | http://doi.org/10.1177/0067205X0102900103 |
| Subject Matter | Article |
THE SLUMBERING SOVEREIGN:
SIR OWEN DIXON'S COMMON LAW CONSTITUTION
REVISITED
Michael Wait*
"The Common Law … abhors infiniteness".1
INTRODUCTION
Much has been said of the ascendancy of legalism in the recent jurisprudence of the
High Court; both the judicial method and many of the substantive doctrines espoused
by Sir Owen Dixon have been rejuvenated.2 However, it is, as yet, unclear whether this
legalist revival extends to the Court's understanding of constitutional sovereignty.3 In
Sue v Hill4 Gleeson CJ, Gummow and Hayne JJ recently said that the Australian
sovereign is "a constitutional monarch".5 Despite its apparent orthodoxy, this
statement raises many intriguing questions about ultimate authority under the
Australian Constitution. In particular, it is unclear whether the recently appointed
Australian people have retained their sovereign status6 or whether that honour has
been restored to the Crown.
This ambiguity is compounded by the decision of Lange v Australian Broadcasting
Authority,7 which despite remaining silent on the question of sovereignty, has been
cited by both republicans and traditionalists in aid of their respective views. On the
one hand Lange may appear to have signalled a retreat from theories of republicanism
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* BA (Hons), LLB (Hons) (Adel). I am indebted to Chief Justice Doyle of the Supreme Court
of South Australia, and Professor Michael Detmold and Dr John Williams of the University
of Adelaide for their comments and criticisms regarding earlier drafts of this article. I
would also like to thank Belinda Baker, Macgregor Duncan, Geraldine Sladden, Pierina
Reina and Noel Wait for their help.
1 Ferrer v Arden (1599) 6 Co Rep 7a; (1599) 77 ER 263.
2 For example, AM Gleeson, "Judicial Legitimacy" (2000) 20 Aust Bar Rev 4; WMC Gummow,
Change and Continuity: Statute, Equity and Federalism (1999) at ixx.
3 In this paper I adopt the meaning of sovereignty offered by McHugh J in McGinty v Western
Australia (1996) 186 CLR 140 at 237: "ultimate sovereignty resides in the body which made
and can amend the Constitution".
4 [1999] HCA 30; (1999) 163 ALR 648.
5 Ibid at [70].
6 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 138 per Mason
CJ; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 71 per Deane and Toohey JJ;
McGinty v Western Australia (1996) 186 CLR 140 at 230 per McHugh J.
7 (1997) 189 CLR 520.
58 Federal Law Review Volume 29
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because, rather than relying expressly upon the authority of the people, the reasoning
in that case was founded upon developments in the common law.8 On the other hand,
the principle espoused in Lange, that "the common law and the requirements of the
Constitution cannot be at odds",9 may be regarded as a correlative to the republican
notion of sovereignty: if the Australian people have assumed the mantle of Australian
sovereign then their written charter must take on the status of grundnorm and prevail,
to the extent of any inconsistency, over the c ommon law.10
This paper attempts to outline a somewhat novel interpretation of Dixon's
constitutional jurisprudence and to resolve the current uncertainty regarding
constitutional sovereignty by reference to it. In particular, it is contended that Dixon's
jurisprudence may shed light upon Gleeson CJ, Gummow and Hayne JJ's recent
declaration of the sovereignty of the Cro wn.
Despite Dixon's professed desire to avoid "merely metaphysical"11 considerations,
lest "theoretical speculation on the source of the law's authority … find a place",12 a
careful reading of his judgments and extra-curial writings reveals a surprisingly
unconventional theory of constitutionalism. Dixon rejected t he constitutional paradigm
of parliamentary sovereignty which prevailed throughout his career. In Dixon's view
that doctrine was inconsistent with the requirements of federalism, contrary to
Australia's legal history and a usurpation of the sovereignty of the Imperial
Parliament. Such an approach is better understood when the principle of judicial
deference, faithfully applied by Dixon as a central canon of legalism, is properly
understood to be a doctrine of the common law rather than a constitutional imperative
emanating from the sovereign legislature.13 Ultimately, Dixon concluded that
sovereignty under the Australian Constitution resides in the Crown. The practical
import of this conclusion is not immediately apparent, because, as has recently been
noted, "the concept of the Crown … is deeply ambiguous."14 However, it is clear that
Dixon did not regard the Crown as ruling in the manner of an unfettered Austinian
sovereign. He did not accept what has been described as:
one of the most extraordinary paradoxes that embarrasses the system of government both
in the United Kingdom and Australia: the rule of law is regarded as a central tenet of the
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8 H Wright, "Sovereignty of the People – The New Consti tutional Grundnorm?" (1998) 26 F L
Rev 165 at 175-176.
9 (1997) 189 CLR 520 at 566; recently reaffirmed in John Pfeiffer Pty Ltd v Rogerson [2000] HCA
36; (2000) 172 ALR 625; at [34] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
and at [142] per Kirby J.
10 This appears to have been the approach of many commentators, including: A Stone,
"Freedom of Political Communication, the Constitution and the Common Law" (1998) 26
F L Rev 219; N Aroney, "The Structure of Constitutional Revolutions: Are the Lange, Levy
and Kruger Cases a Return to Normal Science?" (1998) 21 UNSWLJ 645 at 655-656; M Jones,
"Free Speech Revisited: The Implications of Lange & Levy" (1997) 4 AJHR 188 at 200.
11 O Dixon, "The Statute of Westminster, 1931" in Jesting Pilate (1965) 82 at 82.
12 Ibid at 99.
13 Cf J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999) and
G Winterton, "Constitutionally Entrenched Common Law Rights: Sacrificing Means to
Ends?" in C Sampford and K Preston (eds), Interpreting Constitutions (1996) 121 at 136.
14 T Cornford, "Legal Remedies Against the Crown and its Officers" in M Suskin and S Payne
(eds), The Nature of the Crown (1999) 233 at 233.
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