A Turtle* by Any Other Name: The Legal Basis of the Australian Constitution
| Published date | 01 June 2001 |
| DOI | 10.22145/flr.29.2.5 |
| Date | 01 June 2001 |
| Subject Matter | Article |
A TURTLE* BY ANY OTHER NAME: THE LEGAL BASIS OF
THE AUSTRALIAN CONSTITUTION
Anthony Dillon **
'Lawyers are not disposed to look behind the immediate constitutional framework to the
ultimate sources of legal autho rity': Lord Lloyd, The Idea of Law (1987) 173.
INTRODUCTION
In spite of Lord Lloyd's observation, the centenary of federation has given many
Australian lawyers the impetus to do just that, to consider the 'ultimate source' of
authority for the Australian Constitution. The general aim of this article is to assess the
legal basis of the Australian Constitution and, more specifically, how 'autochthony'1
for the Constitution might be achieved. Part I notes that as a result of the Australia
Acts, some members of the High Court have instigated a move away from the
traditional basis of the Constitution, the United Kingdom Parliament, to a new basis in
popular sovereignty. However, as it could be said that the Australia Acts only dealt
unequivocally with 'autonomy', and not 'autochthony', this move is dubious. Whether
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* This analogy is drawn from Professor Frank Scott's work where he relates an eastern myth
to describe the Canadian Constitution as an elephant standing upon the turtle of the
sovereignty of the United Kingdom Parliament. It is said that all former Dominions and
colonies must eventually remove the Imperial turtle and replace it with a local one, but
without destabilising the whole superstructure. See generally, Frank Scott, Essays on the
Constitution: Aspects of Canadian Law and Politics (1977) 246-250. However, even after
patriation of the Canadian Constitution, 'it is not entirely clear whether in the sense
intended by Professor Scott, Canada now has its own turtle', Geoffrey Marshall,
Constitutional Conventions (1984) 206. This article will assess attempts at installing a local
Australian turtle as similarly equivocal.
** BA LLB (Hons) (JCU). Postgraduate student, James Cook University. I would like to thank
Graham Nicholson and Peter Oliver for the benefit of comments made on an earlier draft of
this article. A shorter version of this article was delivered to the 19th Annual Conf erence of
the Australia and New Zealand Law and History Society, Australian National University,
Canberra, 6 July 2000.
1 Autochthony is concerned with how 'at some stage, a state must cease to be the offspring
and derivative of an Imperia l predecessor and exist as a complete and s elf-contained entity,
as a law-constitutive fact itself', Phillip Joseph, Constitutional and Administrative Law in New
Zealand (1993) 398. In contemporary Australia, this notion has taken on some importance in
both academic and judicial circles because 'the position with respect to autonomy is
satisfactory, [but] the pos ition with respect to autochthony is by no means a s strong', Mark
Moshinsky, 'Re-enacting the Constitution in an Australian Act' (1989) 18 Federal Law Review
134, 135.
242 Federal Law Review Volume 29
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Australia's evolutionary achievement of autonomy means that both the political and
legal sources of Australian constitutional authority now lie in some concept of popular
sovereignty, is a next step. Part I further argues against the necessity for the judiciary
alone to take this next step. This Part concludes by suggesting that, if the traditional
legal basis is to be judicially discarded, and a local legal source found, the federal
compact is the most historically correct interpretation of federation.
Parts II and III canvas a number of interrelated factors which hinder an
autochthonous2 explanation of Australia's removal from the orbit of the United
Kingdom legal system. Part II distinguishes between different approaches to the
cessation of the authority of the United Kingdom Parliament and concludes that any
such action to date by that parliament is equivocal, and as a result, the search for
autochthony is in the hands of Australians. Part III notes that although there are
different approaches to the acquisition of autochthony, an approach relying on
democratic and peaceful means is to be preferred. As such, two such possible
approaches are canvassed: the repeal of the Constitution Act or a declaration of
popular sovereignty. Either of these approaches might have consequences for the rule
of law, and therefore these must also be considered.
I THE AUSTRALIA ACTS: THE AUSTRALIAN PEOPLE OR
PARLIAMENTS AS HEIRS?
The debate as to the basis of the Australian Constitution depends on two fundamental
concepts: 'autonomy' and 'autochthony'. This Part begins with a discussion of those
concepts before turning to consider whether the Australia Acts might be taken to have
established 'autochthony'.
Autonomy
Paradoxically, it has been possible to sever Australia's residual constitutional 'links'
with the United Kingdom without severing the legal 'chain'. As such, the chain of legal
continuity is still available to trace the links back to the United Kingdom. This allows
Australians to uphold the validity of the present fundamental legal order, including
the Constitution Act, while at the same time accepting that Australia is a completely
independent sovereign nation.
Thus, Australians can refer to their links with the United Kingdom as they evolved,
to show legal continuity and constitutional validity. However, since the passage of the
Australia Acts, Australia is free to chart its own legal and constitutional future in
accordance with its basic constitutive documents. Consequently, Australia is fully
autonomous. Further, the Constitution in that sense might no longer be considered
solely an Imperial statute3 but the primary constitutional document of Australia,
because the Westminster Parliament has ceased to have any domestic constitutional
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2 Although the concept of autochthony has been described as 'neither very clear nor very
useful', Peter W Hogg, Constitutional Law of Canada (3rd ed 1992) 54 n 41, it will be pursued
in this article because of an apparent confusion in some circles in Australia between it and
the concept of autonomy. As such, the term autochthony is employed in this article in the
sense used by Sir Kenneth Wheare, Constitutional Structure of the Commonwealth (1960) ch. 4,
89. See below n 10 and accompanying text.
3 The Australian Constitution is contained in clause 9 of the Commonwealth of Australia
Constitution Act 1900 (Imp) (the Constitution Act).
2001 The Legal Basis of the Australian Constitution 243
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role in Australia.4 Even the Queen acts as Queen of Australia (not the United
Kingdom) when acting as Australian he ad of state.5
Tony Blackshield has said, '[a]s a fully autonomous independent nation, we must
explain our constitutional arrangements wholly in homegrown terms'.6 Why?
Autonomy is not autochthony. It is still logical for a former Dominion, now an
autonomous nation, to explain such arrangements by the 'gradual and, to a degree,
imperceptible'7 withdrawal of British hegemony, but still within the British legal
framework. Even so, it would be mandatory for any successful claim to autochthony
that Australia's constitutional arrangements be explained wholly in such terms.
Autochthony
As noted by Phillip Joseph, 'uninterrupted legal devolution [can] prove a mixed
blessing'8 Stability and continuity are preserved through 'orderly development'9 but
autochthony can be confounded. An autochthonous or homegrown constitution is said
to be one that has 'sprung from the land itself ... and is rooted in the local soil'.10 As
such, autochthony requires that a constitution be indigenous. In other words, the only
claim to authority of the Australian Constitution must spring from within Australia
itself.
By dint of legal history, Australia does not have a truly autochthonous
Constitution.11 Australia does not have a constitution solely adopted by the
spontaneous will (or by an assumed act) of the Australian people, nor a constitution
enacted by means of a break in legal continuity. Further, there appear to be competing
claims as to the authority of the Constitution; a persuasive one being that of an
Imperial statute. To be sure, all the constituent documents of the Australian
constitutional order have an external rather than a local root. As a result, Australia,
which seems more interested in the 'substance than in the trappings and formal
guarantees of independence'12 - apparently unlike New Zealand and to a lesser degree
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4 By virtue of s 1 of the Australia Acts 1986 (UK) and (Cth). As such, Australia's autonomy is
complete and irreversible.
5 Royal Style and Titles Act 1973 (Cth).
6 A R Blackshield, 'The Implied Freedom of Communication' in Geoffrey Lindell (ed) Future
Directions in Australian Constitutional Law (1994) 232, 242 (empha ses added).
7 China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 183 (Bar wick CJ).
8 Phillip Joseph, 'Foundations of the Constitution' (1989) 4 Canterbury Law Review 58, 69.
9 Sue v Hill (1999) 163 ALR 648, 675 (Gleeson CJ, Gummow and Hayne JJ), quoting Southern
Centre of Theosophy Inc v South Australia (1979) 145 CLR 246, 261 (Gibbs J).
10 Wheare, above n 2, 89.
11 For a similar claim in relation to Canada's patriated Constitution, see Geoffrey Marshall,
Constitutional Conventions (1984) 206: '[I]f patriation is equated with the idea of
"autochthony" ... Canada's new Constitution is not (in the term popularised by Sir Kenneth
Wheare) "autochthonous''. In contrast, Marshall's earlier writing seemed to reflect a
broader and less strict view of "autochthony"'. This earlier view will be discussed at length
with respect to Australia in thi s article, see text accompanying n 140 below.
12 R T E Latham, 'The Law and the Commonwealth' in W K Hancock (ed) Survey of British
Commonwealth Affairs (1937) Vol. 1, 526. Wheare has also noted that many members of the
Commonwealth 'are not interested in the technicalities of law when they have the
substance of power', above n 2, 106.
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