French, Justice Robert --- "The Constitution and the people" (FCA) [2001] FedJSchol 7

THE CONSTITUTION AND THE PEOPLE

Justice RS French

Introduction
To read the Australian Constitution is not to experience a significant sense of moral uplift. It sets out no ringing declaration of shared values nor statement of fundamental human rights and freedoms protected by it. There is no historical catharsis, no revolutionary big bang from which our nationhood emerged and expanded. Indeed, there is still debate about when Australia became a nation,[1] not least for the purpose of determining who are its people and who are aliens.[2] Despite its lack of inspirational qualities and originating drama it is the document which sets the framework within which Australia is governed and it has helped to deliver stable government in this country for over 100 years. As democratic constitutions go, Australia’s is now of respectable age.

With 100 years of experience in interpreting and operating within the constitution, Australian courts and other governmental institutions still find much room for debate about its nature and meaning and even about the ways in which it should be interpreted.[3] In particular, there are still open questions about the source of the authority of the Constitution and, connected with that, the way in which the people of Australia figure in it and ground that authority. It raises pressing questions in today’s world about what it is to belong to the Australian community, the concept of citizenship and the relationship of Australia to its indigenous people. This paper considers some of these issues.

A Brief Pre-History

Australia's constitutional history, from the perspective of its colonisers, began with the taking of the possession of the eastern part of the continent by James Cook in 1770.[4] In 1786, New South Wales was designated as a place to which British convicts might be transported.[5] In 1788 Governor Philip arrived in that colony as the embodiment of the authority of the British Crown,[6] the same year that thirteen American colonies voted upon the Constitution of the United States. 1823 saw the first appointed local legislative body in New South Wales and the establishment in that colony of a Supreme Court.[7] Tasmania was separated from New South Wales in 1825.[8] A partly elective legislative body was created for New South Wales in 1842 under the Australian Constitutions Act 1842, an Imperial Statute which provided for the establishment of a Representative Legislative Council for New South Wales and Van Dieman's Land.[9] Because transportation was continuing in Van Diemen's Land, representative government was not extended to it until 1854.

Following a report by a committee of the Privy Council in 1849, which inquired into the constitutional position of the Australian Colonies, the Australian Constitutions Act 1850 (Imp) was passed. It provided for the enactment and alteration by colonial legislatures of their own constitutions. It also provided for the separation of Victoria from New South Wales which took effect in January 1851. In 1854 the Legislative Council of Tasmania enacted a Constitution Act in terms authorised by the 1850 Act. It became effective upon receiving the Royal Assent. It established a bi-cameral legislature.[10] In 1855, common form constitutions were established in New South Wales and Victoria albeit they exceeded the powers conferred by the 1850 statute in respect of the waste lands of the Crown and required express statutory authorisation by the UK Parliament. Responsible government was adopted within the framework of those constitutions as a matter of convention. The Australian Constitutions Act 1842 and 1850 authorised the creation of Queensland out of New South Wales as a separate colony on the Petition of householders of the area above the 30 degree of south latitude. The separation was effected by Letters Patent in 1859 and an Order in Council of that year established the constitution of the colony in terms similar to that of the 1855 New South Wales Constitution. South Australia was created as a province in 1834 by Imperial statute.[11] That statute authorised the King in Council to take necessary steps to establish a legislative body whose enactments were to be the subject of disallowance. The Act was repealed and replaced by another Imperial Statute in 1842.[12] It authorised the establishment of a bi-cameral legislature. South Australia was covered by the Australian Constitutions Act 1850 and a Legislative Council with representative government set up in July 1851. Subsequently a South Australian Constitution Act 1855 was passed by the South Australian Legislature and received royal assent.[13]

Western Australia was established as a colony by an Imperial statute in 1829 but did not achieve representative government until 1890 when the Constitution Act 1889 was authorised by Imperial Statute. It established a bi-cameral legislature, including a nominated Legislative Council. That was replaced by an elective Council in 1893.[14] The Constitution Act 1899 passed by the Western Australian Parliament consolidated its predecessor enactments.

The Colonial Constitutions whose development is outlined above, all derived their legal authority directly or indirectly from Acts of the Imperial Parliament. They did not however spring fully formed from the brow of Britannia. They were the result of local initiatives by the colonists. Indeed attempts by Earl Grey to develop "top down" constitutional models including provision for an inter-colonial General Assembly came to grief for want of local support.

In a despatch of 31 July 1847, Earl Grey had foreshadowed the Australian Constitutions Act 1850. He proposed a number of matters including a General Assembly to deal with matters of common Australian interest. The despatch was greeted in New South Wales "with a storm of indignation".[15] The colonists had not been consulted about the constitutional changes proposed. They were "especially alarmed at the suggestion of indirect election which would take away the instalment of representative institutions which they had lately won". In the debate that followed however little was said about the federal proposal. When mentioned at all it was "...usually in a tone of mild approval - as being unobjectionable, and possibly even useful, but of little immediate importance".[16]

On 31 July 1848, in another despatch Earl Grey said he had no wish to impose unwelcome constitutional changes. He maintained the idea of an inter-colonial legislature pointing out, in particular, the extreme inconvenience of tariff differences generated by independent legislatures. The Privy Council Committee in 1849 also addressed the tariff question arising from the establishment of separate legislatures in each of the colonies. It recommended a uniform tariff and that one of the Governors of the Australian Colonies should always hold a commission constituting him Governor-General of Australia. The Committee recommended he be authorised to convene a body to be called "The General Assembly of Australia". The General Assembly was to have legislative power on a number of matters.

In the event the General Assembly proposal did not proceed. The federal clauses were rejected in the United Kingdom Parliament on the bases that they had not been asked for, that they were opposed by the colonies and that the scheme was premature.[17] Even though the federal idea did not proceed at that time, when Earl Grey commissioned Sir Charles Fitzroy as Governor of New South Wales he gave him four separate commissions appointing him Governor of each of New South Wales, Tasmania, South Australia and Victoria and another commission appointing him "Governor-General of all her Majesty's Australian possessions including the colony of Western Australia". Quick and Garran observed:

"The Governor of New South Wales was thus constituted a sort of advisory overlord of the whole of Australia ...."

A kind of Federal Executive was in name at least actually constituted. The movement towards federation thereafter came from within Australia. For as Professor Lumb has observed:

The co-existence of six colonies on the Australian continent independent of each other in local policies, although united by common law, nationality and similar institutions of government, could not be the basis for a permanent constitutional system."

The "nationality" cited by Professor Lumb as a unifying factor among the colonists was no doubt a reference to their common status as British subjects. There was a wider perception of a people or race mixed up with the concept of nationality which developed over this time. Bob Birrell observes in his Federation: The Secret Story that at the turn of the nineteenth century Australians used the term "people" or "race" interchangeably. Alfred Deakin, in 1901, introducing the Immigration Restriction Act 1901 which was to be the buttress of the white Australia policy, spoke of a desire to be one people without the admixture of other races which he described as a "note of nationality".[18] It reflected what he described as an aspiration for "a shared sense of peoplehood...to be expected from a nationalist initiating the process of nation-building."[19]

The Conventions
Conventions of colonial representatives came together to discuss and draft an Australian Federal Constitution in the 1890s. The concerns that brought them together involved foreign affairs, immigration, defence, trade and commerce and industrial relations. France and Germany had been active in the region in the 1880s. The French had begun to colonise New Caledonia and Vanuatu. Germany colonised portion of New Guinea in spite of an abortive attempt by the Premier of Queensland to annex it, an attempt disclaimed by the United Kingdom government. Broadly speaking, the impulse to federation derived from concerns about these developments, the need for an Australian Defence Force, the desire to keep Australia white and the impact of strikes which spread from one colony to another. There were trade barriers between the colonies which were the subject of much debate between free traders and protectionists. And as the Constitutional Commission said in 1987:

"There was also a self-confidence in Australia which was probably a factor in the push for Australia to become a nation. This self-confidence was largely due to economic prosperity. It was reinforced by Australian cricketers who showed they could beat Great Britain at her own game, and by Australian artists, writers and poets and agricultural investors." [20]

A formal first step, which flowed from an Intercolonial Convention held in Sydney in 1883 was the establishment of the Federal Council of Australasia. This was done by an Imperial Statute.[21] It comprised the Australian Colonies, New Zealand and Fiji. In the event that Council failed. Neither New South Wales nor New Zealand attended any of its meetings. Fiji came to one. South Australia only participated between 1889 and 1891. As Professor Sharwood observed, its authority was limited, it had no executive and no revenue and was branded as a Victorian invention foisted on the other colonies.[22]

In 1889 however, Sir Henry Parkes, dismissing the Federal Council as “a rickety body”, proposed an Intercolonial Conference to frame a constitution claiming that the Federal Council was "a rickety body". After various vicissitudes a conference was convened in Melbourne in February 1890. It was resolved to open the conference to the public, a step of which Professor Sharwood said:

"This may well have been one of the most important decisions the conference was to make, as it allowed for extensive, even lavish press coverage of its proceedings." [23]

It was at this conference during a banquet held on 6 February 1890 at Parliament House in Melbourne that Parkes, responding to a toast, coined the famous phrase:

"The crimson thread of kinship runs through us all."

This was an adaptation and toning down of a metaphor which he had used at the opening of the Sydney/Brisbane railway in 1889 at which he spoke of "the crimson fluid of kinship pulsing through all iron veins".[24] After much debate on Thursday, 13 February 1890, the Conference passed a motion in the following terms:

"That in the opinion of this Conference, the best interests and the present and future prosperity of the Australian colonies will be promoted by an early union under the Crown, and while fully recognising the valuable services of the Members of the Convention of 1883 in founding the Federal Council, it declares its opinion that the seven years which have elapsed have developed the national life of Australia in population, in wealth, in the discovery of resources, and in self-governing capacity, to an extent which justifies the higher act, at all times contemplated of the union of these colonies, under one legislative and executive government on principles just to the several colonies."

It was then resolved on Deakin's motion that the members of the conference should take such steps as might be necessary to persuade the Legislatures of their respective colonies to appoint delegates to a National Australasian Convention empowered to consider and report upon an adequate scheme for a federal constitution. In the event the Conference led to the establishment of the 1891 Convention comprising delegates elected by colonial parliaments and held in Sydney.

The critical importance of popular support for any constitutional proposal was formally recognised early in the Convention. On the second day at Sydney on 3 March 1891 when a motion was debated that the press and the public be admitted, George Dibbs MP, one of the six delegates from New South Wales said:

"We want to build up a nation, and in order to do so we must take into our confidence the people who are the principal factors and the press also."[25]

The initial focus of the debates was on resolutions submitted by the Chairman of the Convention, Sir Henry Parkes, which set out the essential principles of the proposed Commonwealth Constitution.[26] On the second day of the debate on the resolutions, Alfred Deakin reminded the delegates that the people would determine the fate of their proposals:

"We know from the outset the bar of public opinion before which we are to be judged, and we know from the commencement of our labours that the conclusion of them rests in other hands than ours - in hands of no less a body than the assembled peoples of all the Australasian colonies." [27]

This required a consideration not only of the interests of the people as a whole:

"...but also the different and sometimes conflicting localisms which are created owing to the fact that this people is at present bound up with artificial boundaries into a certain number of communities." [28]

Deakin and the other delegates, when referring to the people who would determine by referendum the acceptability of any proposed constitution, referred to the electors of the various colonies. These were defined by the franchises applicable in the colonies. At that time women did not have the vote in any of the colonies although they acquired the franchise in South Australia and Western Australia in 1894 and 1899 respectively. And although Aboriginal people were entitled to vote in New South Wales, Victoria, South Australia and Tasmania, they were excluded if in receipt of charitable aid. Western Australia and Queensland denied the vote to "any Aboriginal native of Australia, Asia or Africa or person of the half blood" save for those who satisfied a property qualification.

The place of indigenous people was little mentioned in 1891 save by Captain Russell, the New Zealand Minister for Defence, who proposed a very loose federation and cautioned against federal interference with outlying areas. In that context he said of New Zealand and its Maori peoples:

"...we, in our own colony, have what may be determined a foreign policy, in as much as we deal with an alien race, that we have laws affecting them, that the questions of native title are matters of very grave moment and that any interruption in our relations with these people might be of the most serious importance to the colony."

He observed by contrast, that "...it is true that the native races of the more settled portions of Australia have given you but little trouble, and you have dealt with them summarily, but possibly when you go to Northern Australia, you may find a race more resolute and more difficult to deal with."[29] to which the Hon Thomas Playford MP of South Australia called out "No". These early debates disclosed a view of "the people" confined by the culture of the time but capable of constituting a platform for the proposition that the Constitution and the institutions which it proposed would have to derive legitimacy from their support. This was emphasised by Deakin in speaking of the necessity of direct election for the Senate, notwithstanding it would be the States' House. In terms which resonate with contemporary debate about the mode of election for an Australian President, he said:

"I say that, however high the title, however lofty the claims, of the Senate, if it derives its origin from an indirect method of election, the representative character of its members cannot equal that of men who face the people directly, and win, in their own person, at the sword's point, and after fierce conflict, the confidence of a majority of the electors."

Although Sir Samuel Griffiths challenged him, he could not conceive of an entity called the State apart from the peoples whose interest it embodied, nor could he conceive anything within the State which could claim an equal authority with the final verdict after solemn consideration of the majority of its citizens.[30]

The Constitution Bill adopted by the 1891 Convention failed to gain acceptance. Quick and Garran record:

"It soon became clear that neither the parliaments nor the people would accept the work of the Convention as final."[31]

They attributed its failure to gain popular acceptance to "...a vague feeling of distrust of the Constitution, as the work of a body somewhat conservative in composition, only indirectly representative of the people, and entrusted with no very definite or detailed mandate even by the parliaments which created it."[32]

It was, in the event, a popular movement which restored momentum to the drive for federation. The 1891 Bill had opened the topic for discussion and raised issues for debate. Other facts came into play such as the apparent economic interdependence of the colonies, the benefit of a co-operative approach and what Quick and Garran called "...the folly of inter colonial barriers".

The Corowa Conference of 1893 organised by the Australian Federation League and the Australian Natives' Association passed a motion, moved by John Quick, in the following terms:

"That in the opinion of this conference the Legislature of each Australasian colony should pass an act providing for the election of representatives to attend a statutory convention or congress to consider and adopt a bill to establish a federal constitution for Australia and upon the adoption of such bill or measure it be submitted by some process of referendum to the verdict of each colony."

Helen Irving points out that while the resolution did not use the word "people", Quick and Garran were to summarise it soon afterwards as if it did. They described the plan it foreshadowed as the best guarantee of interest and confidence in a federal constitution because it ensured that "the people should be asked to chose for themselves the men to whom the task was to be entrusted."[33] Again in language which resonates with contemporary debate, Quick and Garran said:

"The adherents of the parliamentary system had thought that the people would be less likely than the parliaments to select men who by ability and training were most suited for the work of constitution-making; but they had forgotten that more important even than the personnel of the convention was the public confidence in the convention. The result showed that the chosen representatives of the people were for the most part those would have been the chosen representatives of the parliaments; but from the fact of their election by the people they had a power, and they enjoyed a confidence, which election by the parliaments could never have given them."

The Corowa plan was considered by the Premiers' Conference held in Hobart in 1895. That conference decided that each colony would pass enabling acts to chose ten delegates to meet in a convention to draft a federal constitution for consideration by each colonial parliament. The Convention would reconvene to consider proposed amendments and the constitution would be put to the people at a referendum before being submitted to the Crown. Queensland and Western Australia opposed popular election of delegates. It was agreed that this would not be mandatory. The colonies could adopt their own means of selection. Because Queensland could not agree on the mechanism for selection, it was unrepresented at the Second Federal Convention. The Western Australian parliament chose its own delegates without reference to its electors. As it turned out, in those colonies where direct election occurred most of those elected to the Convention were serving or former politicians who would have been chosen by their parliaments had that method of selection been adopted.[34]

The legitimacy of the proposed constitution was seen by those who devised the process for its adoption as critically dependent upon its acceptance by popular vote.

The drafting process to emerge from the new Convention which first met in Adelaide in March 1897, involved consideration by all colonial parliaments with amendments to be referred back to the Convention. The Convention reconvened in Sydney in September 1897. There were some 286 amendments suggested by ten Houses of Parliament. In the event the Sydney Convention closed before more than half of the clauses of the Constitution had been considered. It resolved to convene its final session at Melbourne on 20 January 1898. That session, which extended from 20 January to 17 March, was described by Quick and Garran as "the longest and most important of all." The whole Bill was reconsidered and revised by the drafting committee.

The revised Constitution Bill having been adopted by the Convention in March 1898 it was, according to the enabling Acts, to be submitted to the electors of each of the colonies. Referenda were held in Victoria, Tasmania and South Australia where it was approved by majorities. But it did not obtain the minimum number of voters required in New South Wales. Amendments were agreed at a Premiers' conference held in Melbourne in January 1899 where all six colonies were represented. Further referenda were required. These were held and the Bill was approved by electors in New South Wales, Victoria, South Australia and Tasmania. Queensland approved it in September 1899. Western Australia did not proceed to referendum at that time. The five colonies which had approved the Bill then submitted it to the Imperial Parliament together with addresses from their respective Legislatures. Subject to changes to covering cls 5 and 6 and s 74 relating to appeals to the Privy Council from the High Court, the Bill was passed by both the House of Commons and the House of Lords. On 9 July 1900, it received the Royal Assent.

Western Australian passed its Enabling Act in June and its referendum was conducted on 31 July 1900. By that referendum electors approved the proposed constitution, 44,800 votes to 19,691 votes. Addresses to the Queen, praying that Western Australia be included as an original State of the Commonwealth in the proclamation of the Constitution, were passed on 21 August.

In the referenda held in all the colonies to determine whether their people were in favour of federation and the proposed Constitution, 52% of those eligible to vote actually voted. 57% of those voting in New South Wales supported the federation, along with 55% in Queensland, 94% in Victoria and Tasmania, 79% in South Australia and, on 31 July 1900, 69% in Western Australia.

On 17 September 1900, Her Majesty the Queen signed the Proclamation establishing the Commonwealth as and from 1 January 1901. Quick and Garran commented on the completion of the long process to federation:

"The Commonwealth as few dared to hope it would, comes into existence complete from the first - "A Nation for a Continent and a Continent for a Nation". The delays at which federalists have chafed have been tedious, and perhaps dangerous, but they have been providential; they have given time for the gradual but sure development of the national spirit in the great colonies of Queensland and Western Australia and have prevented the establishment of a Commonwealth of Australia with half the continent of Australia left, for a time outside."

The Authority of the Constitution
The formal legal authority of the Constitution on 1 January 1901 derived from the legislative power of the Imperial Parliament. It was seen by Harrison-Moore as "first and foremost a law declared by the Imperial Parliament to be 'binding on the Courts, Judges and people of every State and of every part of the Commonwealth'."[35] Inglis Clark described it as contained in a written document which is an Act of the Imperial Parliament of the United Kingdom of Great Britain and Ireland.[36] Sir Owen Dixon said of it:

"It is not a supreme law purporting to obtain its force from the direct expression of a peoples inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King's dominions." [37]

Dixon attached to this characterisation of the Constitution a consequence for interpretation. The organs of government are simply institutions established by law. On the other hand in the United States they are agents for the people who are the source of the power.

The position in 1900 was that the Constitution was seen to be legally binding because of the status accorded to British Statutes as an original source of the law and because of the supremacy accorded to those statutes.[38] Sir Darryl Dawson in the Australian Capital Television case[39] reflected a similar view as the contemporary reality of the Constitution:

"No doubt it may be said as an abstract proposition of political theory that the Constitution ultimately depends for its continuing validity upon the acceptance of the people, but the same may be said of any form of government which is not arbitrary. The legal foundation of the Australian Constitution is an exercise of sovereign power by the Imperial Parliament. The significance of this in the interpretation of the Constitution is that the Constitution is to be construed as a law passed pursuant to the legislative power to do so." [40]

This approach was, of course, relevant to the question whether there could be implied in the Constitution a freedom of political communication. Dawson J saw it as a consequence of the legal character of the Constitution that implications must appear from its terms and not from extrinsic circumstances.[41] For his Honour "...the interpretation of the Australian Constitution" was "the interpretation of a statute of the Imperial Parliament".[42] In a Newtonian universe of legal discourse this position is quite comprehensible but the universe of constitutional discourse, like the physical universe, has developed from the Newtonian to something more complex.

An early departure from that original view of the source of legal authority for the Constitution was expressed by Murphy J in Bistricic v Rokov[43] where his Honour said bluntly:

"In my opinion (notwithstanding many statements to the contrary) Australia's independence and freedom from the United Kingdom Legislative Authority should be taken as dating from 1901. The United Kingdom Parliament ceased to be an Imperial Parliament in relation to Australia at the inauguration of the Commonwealth. Provisions of statutes directed to regulating the Imperial-Colonial relations ... then ceased to be applicable. There are strong grounds for considering that cases which held Commonwealth legislation ultra vires because of inconsistency with any law other than the Constitution...were wrongly decided."[44]

Underpinning this, was the proposition that if the original authority for the Constitution had been the United Kingdom Parliament, its existing authority "...is its continuing acceptance by the Australian people."

The acceptance as at 1901 of the Imperial Parliament as legal authority for the Constitution is hardly surprising. It was entirely in accord with the way in which colonial constitutions had evolved. They received their stamp of legal legitimacy either because they were authorised by a pre-existing Imperial Act or were authorised by an Act specifically passed for that purpose. All to a greater or lesser extent however evolved from local movements for self-government.

Sovereignty and the Constitution
The discussion that follows should not underestimate how large and for how long the Imperial connection loomed in Australian constitutional jurisprudence. It was given particular emphasis in R v Sharkey.[45] That case concerned the validity, under the defence power, of a law making it an offence to excite disaffection against the sovereign or the government or the Constitution of the United Kingdom or against either House of Parliament of the United Kingdom. Latham CJ saw the Government and Constitution of the United Kingdom and its Houses of Parliament as "... part of the legal and political constitution of the Commonwealth".[46] Dixon J stated the proposition a little more broadly. He saw the provision as going to "...the constitutional relations of Australia as part of the British Commonwealth the established government of the United Kingdom".[47] Webb J regarded the House of Lords and the House of Commons as "...essential parts of the political and legal organisation of Australia".[48] The power reserved to the Imperial Parliament to legislate for Australia, if so desired by Australia, was a sufficient indication of this.[49]

Professor George Winterton cautions against resort to sovereignty as "a notoriously ambiguous concept". He refers to the legal source from which the Constitution derives its authority and also the location of the power to amend the Constitution. He questions the desirability of breaking the chain of legal authority from the British Parliament:

"...for the extra-legal realm is a world of legal fictions in which there are no boundaries except practically political power and theoretically the limits of imagination." [50]

Notwithstanding the formal legal support for the Constitution of the Commonwealth, the process which led to its enactment was directed, from the outset, to winning over the popular will as a condition precedent to the enactment of any authorising legislation by the United Kingdom Parliament. So "the people" are acknowledged in the preamble as the actors of the fundamental agreement "to unite in one indissoluble Commonwealth". They appear in that context as the people at that time in history of the various colonies. The agreement founding the Constitution was not expressed as an agreement between the colonies but between their people.[51]

The historical process culminating in the agreement of the people gave to the Constitution political legitimacy. But can it be said that the effect of that agreement, as recognised in the preamble, went beyond the conferral of political legitimacy so that even then the Constitution could be seen as deriving its legal authority for Australia from the agreement of the people as a necessary condition, a juristic reality acknowledged by the enabling Imperial Statute.

The concept of sovereignty in a constitutional setting may appear in different guises. At 1901 legislative supremacy rested with the Parliament of the United Kingdom. But as Professor Zines points out, the nature of sovereignty of the people is quite different and indeed could have co-existed with the proposition of British sovereignty. So Mason CJ said in the ACTV case:

"Despite its initial character as a statute of the Imperial Parliament, the Constitution brought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people." [52]

His Honour went on to point out that the Australia Act 1986 (UK) marked the end of the legal sovereignty of the Imperial Parliament and recognised that ultimate sovereignty resided in the Australian people. The use of the term "recognised" accepts the sovereignty of the people as a pre-existing reality. There is in the Constitution however, no direct mechanism which could be said to provide for the exercise of legal supremacy by "the people" whatever that term means. As Zines points out, even those with the franchise, which now includes nearly all adult citizens, cannot themselves alter the Constitution unless given the opportunity to do so by the Legislature. Popular "sovereignty" is limited to the choice of representatives and the approval or disapproval of proposed alterations to the Constitution put to it by its representatives. And the content of the term the "people" has a different meaning or composition for each of those two purposes.[53]

Justice Selway of the Federal Court has considered the tension between the formal model of legal sovereignty deriving from the British Parliament and popular sovereignty in discussing what he calls the "top-down" view of the Constitution as the product of Imperial enactment. This is contrasted with the view that the Constitution was binding because of the consent of the people - the bottom-up view.[54] As he puts it however, it was not until relatively recently that the role of the people was considered by the High Court to affect interpretation of the Constitution. Barwick CJ in Victoria v The Commonwealth [55] recognised the Constitution as the result of the will and desire of the people of the colonies, expressed through referenda. Nevertheless, he regarded their agreement as being expressed in the Act of the Imperial Parliament. What they gained was a "Statutory Constitution under the Crown not a treaty or an agreement of union or a confederation of States."[56]

The process of looking back to the nature of sovereignty under the Australian Constitution as at 1901 may be thought academic in light of subsequent developments, the Statute of Westminster and the Australia Acts of 1986 which, pace Winterton, progressively cast off Australia's mooring lines to Imperial law. It is questionable however, whether the concept of popular sovereignty should be seen as emerging as a result of these events or as having any clearer meaning in their light than it would have had if considered in 1901. The foundation of the Constitution upon an agreement between the people and all relevant references to the people were already in place in the Constitution at that time. Their embedding in its history and their antecedent consent recognised in its terms, were seen as important in the development of its interpretation by the "living force" exponent Inglis Clark, who quoted an American jurist, Judge Cooly thus:

"...as the people change, so does their written constitution change also. Many see it in new lights and with different eyes; events may have given unexpected illumination to some of its provisions, and what they read one way before, they read in a very different way now." [57]

The sovereignty of the people, considered as a way of designating fundamental constitutional authority, has no ready definition which engages with the distribution of powers between the arms of government and between Commonwealth and States in the Constitution. It may support implications that flow from the system of representative democracy for which the Constitution provides. In that sense it may inform the construction of the Constitution. So those provisions of the Constitution which provide for direct election of the Senate and House of Representatives by the people (ss 7 and 24) and their participation in the process of alteration of the Constitution will be seen as particular expressions or attributes of that sovereignty.
It is sometimes said, in current cosmological theory, that, at the time of the creation of the universe, radically different forces were unified as one and only separated out as the universe expanded. So one might say that the exercise of legal sovereignty by the British Parliament in passing the Constitution Act was so closely connected with and dependant upon the consent of the people of the colonies, as they were understood at that time, that their authority was, from the outset, a principle informing the Constitution and becoming more pronounced as Australia's legal independence from Britain evolved.

Who Were “The People”
The idea of "the people" itself is ambulatory. Those who voted on the original Constitution Bill in 1899 and 1900 were defined by a limited franchise. In reckoning the numbers of peoples of the Commonwealth or of a State or other part of the Commonwealth "Aboriginal natives" were not to be counted. This did not mean that Aborigines were disenfranchised by the Commonwealth. That occurred by statute in 1902. Women gained the franchise in that year. And s 127 was deleted following a referendum in May 1967. Aborigines received the Commonwealth franchise in 1962. In the same year franchise restrictions were lifted in relation to Aborigines. Queensland followed suit in 1965 and was the last State to do so. In the referendum which deleted s 127, s 51(xxvi) was amended to delete the exclusion of Aboriginal people from the scope of the race power.

Our ways of looking at each other have evolved. That evolution is reflected in the changing laws of the States and the Commonwealth and in the 1967 amendments to the Constitution. Today all adults would be seen as "the people" for the purpose of defining the authority that underpins the Constitution. and its expressions in the processes of representative democracy and constitutional change. Even the notion of what constitutes an "adult" has shifted its connotation from a person of the age of twenty-one years or over to a person of the age of eighteen years or over. There is no particular reason in principle why the class of adult persons could not be expanded by further lowering the age at which a person is entitled to vote. It becomes a matter of political judgment. It is to be noted however, as Mason J observed in Attorney-General of the Commonwealth (Ex Rel McKinlay) v The Commonwealth [1975] HCA 53; (1975) 135 CLR 1:

"...the Constitution does not guarantee or insist upon universal adult suffrage. Sections 25 and 30 recognize that people may be denied the right to vote by State law until Parliament otherwise provides or by a law of the Commonwealth Parliament..." [58]

Gibbs J put it thus:

"When the section says that the members shall be chosen "by the people" it cannot mean by all the people of the Commonwealth - obviously it means by those people who are qualified to vote...It clearly appears from other sections of the Constitution - ss 25, 30, 41 and 128 that it was recognised that people might constitutionally be denied the franchise on the ground of race, sex or lack of property - the Constitution goes no further than to ensure that an adult who has the right to vote at elections for the more numerous House of the Parliament of a State shall not be prevented by a law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth." [59]

It does not appear from these observations that popular sovereignty imports into the Constitution a principle of adult universal suffrage for which the Constitution does not otherwise provide. But the class of the repositories of that "sovereignty" having expanded it cannot as a matter of practical reality be contracted.

Winterton[60] illuminates the danger of severing the legal chain of authority by considering the identity of "the people":

"...there would seem to be two possibilities: the colonial electors who approved the draft constitution or the present Australian people who demonstrate their acceptance of the Constitution by complying with its provisions and living peaceably under it."

In my opinion however, the "people" of 1900 named a category capable of expansion in constitutional discourse and authority. The connotation of the term "people" has shifted with the passage of time.

Popular Sovereignty and Community Values
There is an arguable, albeit unstated connection between the acceptance of popular sovereignty as underpinning the Constitution and resort by judges to "contemporary community values" in developing the common law and construing statute law. There has been debate in recent years about the application of contemporary community values in the development of the law.[61] An important example of their invocation is to be found in the judgment of Brennan J in Mabo (No 2).[62] Discussing the duty of the High Court to declare the common law of Australia, his Honour in that case acknowledged that Australian law is the historic successor of, and an organic development from, the law of England. He saw it as not immaterial to the resolution of the problem that presented itself in Mabo that since the Australia Act 1986 had come into operation the law of Australia was entirely free of Imperial control. In express application of his perception of community values, his Honour said:

"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people."[63]

In Dietrich v R[64] Brennan J spoke of the ability of courts to mould the law to correspond with the contemporary values of society.[65] He developed his argument thus:

"The contemporary values which justify judicial development of the law are not the transient notions which emerge in reaction to a particular event or which are inspired by a publicity campaign conducted by an interest group. They are the relatively permanent values of the Australian community. Even if the perception of contemporary values is coloured by the opinions of individual judges, judicial experience in the practical application of legal principles and the coincidence of judicial opinions in appellate courts provide some assurance that those values are correctly perceived." [66]

It is not suggested that the references to community values in judgments of the High Court in the last decade were inspired by theories of popular sovereignty. They are, however, consonant with that concept and, to the extent the Constitution permits reference to community values, may in accordance with authority in relation to the development of the common law, inform its construction. This would sit comfortably with the statement by Inglis Clark in 1901 of the proposition that "as the people change, so does their written constitution change also".

What changes on this approach are certain norms or values which inform the construction of the Constitution, laws made under it and the development of the common law. In this way it could be argued that popular sovereignty has a potentially pervasive effect on the development of constitutional law and the laws made under the Constitution. That is not to say that the concept in this application is other than slippery and hazardous. It may too readily lead judges into the development of rules based on their own perceptions which, in any majoritorian sense, would be described as lacking popular support. There is also the criticism advanced by Margaret Allars, reflecting discussions by Braithwaite and others, that:

"The list of community "values" which sociological research claims attract consensus are merely motherhood statements. It is not surprising that in surveys citizens agree almost unanimously that human dignity, protection of human life, wisdom, security for loved ones, good health and so forth are values they accept... Agreement with these values occurs in the absence of context and has no practical consequence. When quizzed regarding their beliefs about particular issues, called "attitudes", disagreement between citizens quickly becomes apparent. At the level of attitudes there is no consensus." [67]

Sovereignty and Indigenous Peoples

It is a feature of sovereignty that it tends to exclusivity. Supreme authority, which is its essence, has that character. This is a difficulty underpinning debate about a treaty with Australia’s indigenous people. It has been argued that implicit in the nature of a treaty is recognition of another sovereignty, a nation within Australia.

The common law of native title as enunciated in Mabo (No 2) did not involve any yielding of sovereignty. It rested upon the non-justiciable proposition that the Crown acquired sovereignty over the land upon its annexation of the Australian colonies. The acquisition of that sovereignty however did not operate directly upon the traditional laws and customs of indigenous people or the relationship with land and waters to which they give rise. The common law in its recognition of those traditional relationships with land does not do so. Nor do the statutory provisions of the Native Title Act 1993 which provides for recognition and protection of native title, validation of past invalid acts affecting native title and extinguishment of native title in certain circumstances. To speak of recognition is in one sense to personify the law and to attribute to it a cognitive function. Avoiding personification and cognitive metaphors, recognition can be regarded as the outcome of the application of rules under which certain rights arising at common law are ascertained which are vested in an indigenous community by virtue of its relationship to land or waters. Extinguishment by executive or legislative action is the result of the exercise of the non-indigenous sovereignty which bars or qualifies common law recognition. Importantly it has nothing to say about traditional law or custom or the relationship of Aboriginal people to their land.

There is a question whether the concepts of sovereignty so far discussed have any relevance in describing the relationship between indigenous people and their country under traditional law and custom and their relationships with each other. Sovereignty is a colonising term. Nevertheless some indigenous leaders have used it to designate what they maintain is their ongoing traditional responsibility for and ownership of country. In Coe v The Commonwealth of Australia [1979] HCA 68; (1979) 53 ALJR 403 the applicant purported to sue on behalf of the Aboriginal community and nation of Australia. He asserted membership of the Wiradjeri Tribe and authority from it and other tribes and the whole Aboriginal community and nation to bring the action. He pleaded inter alia:-

“6A. Clans, tribes and groups of Aboriginal people travelled widely over the said continent now known as Australia developing a system of interlocking rights and responsibilities making contact with other tribes and larger groups of Aboriginal people thus forming a sovereign Aboriginal nation.”

The High Court (Gibbs and Aicken JJ, Jacobs and Murphy JJ dissenting) held that Mason J had rightly dismissed Mr Coe’s application for leave to amend his statement of claim and that his appeal from that order should be dismissed. In so holding Gibbs J acknowledged that the correctness of Milirppum v Nabalco Pty Ltd [68] which had denied that the common law could recognise rights and interests in land held by Aboriginal people, would be an arguable question if properly raised. As to the sovereignty claim he said:

“The Aboriginal people are subject to the laws of the Commonwealth and of the State of Territories in which they respectively reside. They have no legislative, executive or judicial organs by which sovereignty might be exercised. If such organs existed, they would have no powers, except such as the law of the Commonwealth, or of a State or Territory, might confer upon them. The contention that there is in Australia an Aboriginal nation exercising sovereignty, even of a limited kind, is quite impossible, in law to maintain.” [69]

Jacobs J said of those parts of the statement of claim which disputed the validity of the Crown’s claim of sovereignty and sovereign possession that they were:

“Not matters of municipal law but of the law of nations and are not cognisable in a court exercising jurisdiction under that sovereignty which is sought to be challenged.” [70]

That judgment was given some thirteen years or so prior to Mabo (No 2). Revisiting the Coe pleading in 1993 Mason CJ said:

“Mabo [No 2] is entirely at odds with the notion that sovereignty adverse to the Crown resides in the Aboriginal people of Australia. The decision is equally at odds with the notion that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are “a domestic dependent nation” entitled to self government and full rights ... or that as a free and independent people they are entitled to any rights and interests other than those created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law.”[71]

The judgments cited make plain the irreconcilability of conflicting claims to sovereignty. That is not to say that the model of recognition derived from the common law of native title may not be suggestive of an approach to an agreement between the Commonwealth and indigenous Australians which does not involve any compromise of sovereignty however that term is understood. Such an agreement could recognise and acknowledge traditional law and custom of indigenous communities across Australia, their historical relationship with their country, their prior occupancy of the continent and that there are those who have maintained and asserted their traditional rights to the present time. This is a cultural reality which can be accepted without compromising, symbolically or otherwise, Australia's identity as a nation. And if that traditional relationship should be asserted by some in terms of sovereignty, that is sovereignty under traditional law and custom. It may have meaning in that universe of discourse. It can even be accepted in that context, without being in any way inconsistent with the Commonwealth Constitution or the laws made under it.

Citizenship
Related to the idea of a "people of Australia" is the idea of citizenship. It is, however, at most as elusive in definition as "the people". It may be taken to refer to a legal status defined by a Constitution or statutes made under it. It can refer in a broader sense to full membership in a particular political community. It may also be described as desirable activity where the quality of one citizenship is a function of ones participation in the community. So the 1994 Commonwealth Parliamentary Committee on Migration defined citizenship as covering both a legal relationship to the State and a spiritual sense of commitment to the State.[72]

The content of citizenship beyond legal status is of significance to indigenous Australians. The question arises whether, even with equal legal rights, indigenous people in Australia are members on equal terms of this community. By criteria applicable to health, education, general welfare and participation in the economy they are not. The issue of self-determination raises the question, already discussed, whether rights particular to indigenous people, arising out of recognition of traditional social organisation, including relationships to country, generate tensions with the liberal democratic principles under which all Australian citizens are to have the same rights. These may in the end become issues of recognition of pre-existing realities able to be so expressed and explained rather than as the conferral of special rights or privileges.[73] This is an issue of substantive as distinct from formal citizenship. It may be seen as part of a larger range of issues raised by multiculturalism and the extent to which the retention of cultural identity derived from other countries is consistent with citizenship as a full member of the Australian community. There is no doubt that anxiety about these issues underlies contemporary debate about our immigration inflow and, in particular, the arrival of boat people from the Middle East and other parts of the world subject to war, oppression and civil disorder.

The Constitution makes no reference to citizenship apart from citizenship of a foreign power as a disqualification for election to parliament under s 44(1). It does provide in s 117, a prohibition upon discrimination between subjects of the Queen resident in different States. A precursor of s 117 adopted at the Adelaide session of the Convention in 1897 provided:

"A State shall not make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person within its jurisdiction, the equal protection of the laws."

At the Melbourne session in 1898, Quick moved that "citizen" should be defined in the Constitution or otherwise that the Parliament should be empowered to make laws with respect to citizenship. Neither proposal succeeded. There was long discussion of the definition of citizenship. Opposition was based partly upon the argument, emanating from Sir John Forrest of Western Australia, that the States should be able to maintain discriminatory legislation against people of particular races and especially the Chinese. For citizenship would necessarily extend to British subjects who included "coloured peoples".

In the event, as Quick and Garran point out, the different gradings of political status recognised by the Constitution are:

Subjects of the Queen
People of the Commonwealth
People of a State

The people of the Commonwealth were those permanently domiciled within its territorial limits. Constitutionally they were described as British subjects or subjects of the Queen. They did not lose their character as people of the Commonwealth by migrating from one State to another, any more than they would lose their national character by migrating from one part of the Empire to another or sojourning in foreign countries. Their privileges and immunities as people of the Commonwealth were secured and guaranteed without regard to their residence in a particular State.[74] Citizenship in the substantive sense was qualified by s 25 of the Constitution which provided:

"For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted."

The section imposed a penalty on any State which disenfranchised persons of a specific race. The penalty arose because the number of people of the State would determine the number of members to be chosen for it under s 24 of the Constitution. Its repeal was recommended in 1988 by the Constitutional Commission which described it as "archaic" and "out moded".

As a result of the constitutional silence on the question of citizenship, it required statutory definition. There was no formal category of Australian citizen until the passage of the Nationality and Citizenship Act 1948 (Cth). By s 10 a person born in Australia after the commencement of the Act was to be an Australian citizen by birth unless his or her father was an envoy of a foreign country and not an Australian citizen or was an enemy alien. A person who was a British subject immediately prior to the date of the commencement of the Act, on that date became an Australian citizen if he or she was born in Australia and would have been an Australian citizen if s 10 of the Act had been in force at the time of his birth. Arthur Calwell, introducing the legislation, into the House of Representatives described it as marking "....another step forward in the development of Australian nationhood". The Bill was not designed to make an Australian any less a British subject "...but to help him to express his pride in citizenship of this great country".[75]

There was no statement of the rights of Australian citizenship embodied in the legislation. The Citizenship Act covered Aboriginal people born in Australia as, by virtue of their birth, they became Australian citizens. However, in 1948 only a small minority of them were entitled to vote in Federal and State elections or were eligible to receive social security benefits. The Natives (Citizenship Rights) Act 1944 (WA) provided for adult Aboriginal people to make application for Certificates of Citizenship. The holder of a Certificate of Citizenship would be deemed to be "...no longer a native or Aborigine and shall have all the rights, privileges and immunities and shall be subject to the duties and liabilities of a natural born or naturalised subject of his Majesty." The Act of 1948 eventually became the Australian Citizenship Act. In 1984 the Act ceased automatically to make Australian citizens British subjects, and from 1986 an applicant for citizenship no longer needed to renounce all other allegiance. In 1993 references to the Monarch were dropped in the new "Pledge of Commitment as a Citizen of the Commonwealth of Australia".

Citizenship became part of the definition of the Australian people in a small "c" constitutional sense. The term non-citizen is now applicable under the Migration Act 1958 (Cth) to those who might formerly have been described as aliens. It was the issue of citizenship, albeit of a foreign power, that recently and definitively confirmed the severance of Australia's constitutional linkages to the United Kingdom. In Sue v Hill[76] the High Court, sitting as a Court of Disputed Returns, held a citizen of the United Kingdom to be a subject or citizen of a foreign power within the meaning of s 44(1) of the Constitution. The coincidence that the same person exercises regal functions under the constitutional arrangements in the United Kingdom and Australia did not deny the proposition that the United Kingdom is a foreign power within the meaning of s 44(1). In the joint judgment of Gleeson CJ, Gummow and Hayne JJ it was said, at 503:

"Australia and the United Kingdom have their own laws as to nationality so that their citizens owe different allegiances. The United Kingdom has a distinct legal personality and its exercises of sovereignty, for example in entering military alliances, participating in armed conflicts and acceding to treaties such as the Treaty of Rome, themselves have no legal consequences for this country. Nor, as we have sought to demonstrate...does the United Kingdom exercise any function with respect to the governmental structures of the Commonwealth or the States."

The latter statement is a measure of Australia’s movement from the concept of close legal and constitutional integration with the United Kingdom in which the Constitution was formed. That is short of a conversion to a Republic. That next step awaits.
Conclusion
There is no real controversy that in its beginnings the Constitution was formally supported by the authority of the Imperial Parliament. However it derived its legitimacy from a referendum of the people of the colonies albeit the concept of “the people” was not as inclusive then as it is today. Popular support in an historically narrow sense, was the sine qua non of the creation of the Commonwealth. With the passage of the years the legitimising function of the initial referendum supported the evolution of “the people” as the contemporary ground of constitutional authority and in that sense the ultimate repository of sovereignty. The idea of popular authority or sovereignty cannot be dismissed as a trivial statement of historical reality which has nothing to say about the construction of the Constitution. The second and associated element of the evolution of “popular sovereignty” is the widening of the concept of “the people”. The inclusion of women and indigenous people has been in effect constitutionalised by irreversible conventions reflected in the statutes and practices of the Commonwealth and the States.

APPENDIX 1
RESOLUTIONS PASSED AT 1891 SYDNEY CONVENTION

That in order to establish and secure an enduring foundation for the structure of a federal government, the principles embodied in the resolutions following be agreed to:

(1) That the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government.

(2) That the trade and intercourse between the federated colonies, whether by means of land carriage or coastal navigation, shall be absolutely free.

(3) That the power and authority to impose customs duties shall be exclusively lodged in the Federal Government and Parliament, subject to such disposal of the revenues thence derived as shall be agreed upon.

(4) That the military and naval defence of Australia shall be intrusted to federal forces, under one command.

Subject to these and other necessary provisions, this Convention approves of the framing of a federal constitution, which shall establish, -

(1) A parliament, to consist of a senate and a house of representatives, the former consisting of an equal number of members from each province, to be elected by a system which shall provide for the retirement of one-third of the members every years, so securing to the body itself a perpetual existence combined with definite responsibility to the electors, the latter to be elected by districts formed on a population basis, and to possess the sole power of originating and amending all bills appropriating revenue or imposing taxation.

(2) A judiciary, consisting of a federal supreme court, which shall constitute a high court of appeal for Australia, under the direct authority of the Sovereign, whose decisions, as such, shall be final.

(3) An executive, consisting of a governor-general and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the house of representatives, expressed by the support of the majority.

---

[1] See Winterton: The Acquisition of Independence Ch 3, This Collection
[2] Re Patterson Ex parte Taylor (2001) 182 ALR 657 and Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48
[3] There is a plethora of literature on this topic, see eg – Craven, The Crisis of Constitutional Literalism in Australia, Lee and Winterton (eds) Australian Constitutional Perspectives, LBC 1992 p 1-32; Mason, Trends in Constitutional Interpretation [1995] UNSWLawJl 13; (1995) 18 UNSW Law Journal 237-249; Patapan H; The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms (1997) 25 Fed Law Review 211-235; Goldsworthy, Interpreting the Constitution in its Second Century [2000] MelbULawRw 27; (2000) 24 MULR 677-710; Kirby M, Constitutional Interpretation and Original Intent: A Form of Ancestor Worship [2000] MelbULawRw 1; (2000) 24 MULR 1-14; Meagher, The Validity of Non-Originalism as a Theory of Interpretation of the Australian Constitution (2002) 24 Syd Law Rev 141-188
[4] See generally RD Lumb, The Constitutions of the Australian States, University of Queensland Press 4th Edition (1977) Chapter 1
[5] Declaration by Order in Council in 1786 pursuant to 24 Geo III c 56 (1784)
[6] Derived from 27 Geo III c 2 (1787) providing that the Governor should have authority from time to time to constitute a Court of Civil Justice, Quaere whether it allowed establishment of a civil government.
[7] Pursuant to the Imperial Statute Geo IV c 96
[8] This occurred by Order in Council pursuant to s 44 of the Act of 1823 which authorised separation of Van Dieman's Land from New South Wales.
[9] 5 and 6 Vic c 76 (1842)
[10] 18 Vic No 17
[11] "An Act to empower his Majesty to erect South Australia into a British province or provinces, and to provide for the colonisation and government thereof" - 4 and 5 Will, IVc 95.
[12] 5 and 6 Vict c 61
[13] South Australian Constitution Act (No 2) 1855-56
[14] Constitution Amendment Act 1893 57 Vict No 14
[15] The Annotated Constitution of the Australian Commonwealth, Quick and Garran p 82
[16] Ibid p 82
[17] Ibid at 87
[18] Birrell, Federation: The Secret Story, Duffy and Snellgrove (2001) at p 287
[19] Ibid at 287
[20] Australia's Constitution - Time to Update, Summary of the Report of the Advisory Committees to the Constitutional Commission 1987 pp 7-8
[21] 48 and 49 Vict c 60
[22] Sharwood, The Australian Federal Conference of 1890, Craven (ed) The Convention Debates - Commentaries, Indices and Guide Vol 6 p 41-42
[23] Sharwood op cit at p 52
[24] Sharwood op cit at p 55 citing Crowley F, Colonial Australia 1875-1900, Nelson, 1980 pp 290-291
[25] Conv Deb, Syd, 1891 p 12
[26] Conv Deb, Syd, 1891 p 23. See Appendix 1 to this paper for the resolutions.
[27] Conv Deb, Syd, 1891 p 70
[28] Conv Deb, Syd, 1891 p 70
[29] Conv Deb, Syd, 1891 p 66
[30] Conv Deb, Syd, 1891 p 74
[31] Quick and Garran at p 144
[32] Ibid at p 144
[33] Irving, To Constitute a Nation, A Cultural History of Australia's Constitution, Cambridge University Press, 1999 at p 135 and citing Quick and Garran p 154
[34] Irving at p 142
[35] Harrison-Moore, The Constitution of the Commonwealth of Australia 2nd Edition (1910) Legal Books (repr) 1977 p 66
[36] A Inglis Clark, Studies in Australian Constitutional Law (1901) Legal Books (repr) 1977 p 14
[37] Dixon, The Law and the Constitution (1935) 51 LQR 590 at p 597
[38] Lindell, Why is Australia's Constitution Binding? (1986) 16 Fed L Rev 29 at pp 32-33
[39] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
[40] AC TV case at 181
[41] AC TV case at p 181
[42] AC TV case at p 183
[43] (1976) 135 CLR 522
[44] at p 567
[45] [1949] HCA 46; (1949) 79 CLR 121
[46] at p 136
[47] at p 149
[48] at p 164
[49] at p 164
[50] Winterton, Popular Sovereignty and Constitutional Continuity (1998) 26 Fed Law Rev 1 at p 7
[51] R v Duncan; Ex parte Australian Iron and Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535 at 589; Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 at p 442
[52] AC TV case at 138
[53] Zines, The High Court and the Constitution 4th Edition, pp 395-396
[54] Selway, Horizontal and Vertical Assumptions Within the Commonwealth Constitution (2001) 12 PLR 113 at pp 128-129
[55] [1971] HCA 16; (1971) 122 CLR 353 at p 370
[56] [1971] HCA 16; (1971) 122 CLR 353 at p 370
[57] Inglis Clark at p 27 citing Cooly, Michigan - American Commonwealths pp 345-347
[58] 135 CLR at 62
[59] 135 CLR at 24
[60] Winterton at p 7
[61] Braithwaite, Community Values and Australian Jurisprudence (1995) 17 Syd Law Rev at p 351; Ziegert, Judicial Decision Making, Community and Consented Values: Some Remarks on Braithwaite's Republican Model (1995) 17 Syd Law Rev at p 373; Krygier and Glass, Shaky Premises, Values Attitudes and the Law (1995) 17 Syd Law Rev at p 385; Allars, Citizenship Theory and the Public Confidence Rationale for the Bias Rule (2001) 18 Law in Context p 12
[62] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
[63] Mabo (No 2) at p 42
[64] [1992] HCA 57; (1992) 177 CLR 292
[65] Ibid at 319
[66] Ibid at 319
[67] Allars, op cit at p 12
[68] (1971) 17 FLR 141
[69] 53 ALJR at 408
[70] 53 ALJR at 410
[71] Coe v The Commonwealth [1993] HCA 42; [1993] 68 ALJR 110 at 115.
[72] See Chesterman and Galligan, Defining Australian Citizenship Selected Documents MUP (1999) pp 8-9
[73] See Citizenship and Indigenous Changes - Changing Conceptions and Possibilities Peterson and Sanders (ed) Cambridge (1998) pp 123
[74] Quick and Garran at 957-958
[75] Parl Deb H of R V 198 30 Sept 1948 pp 1060,1062
[76] [1999] HCA 30; (1999) 199 CLR 462