Federal Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Federal Law Review |
|
'Lawyers are not disposed to look behind the immediate constitutional framework to the ultimate sources of legal authority': Lord Lloyd, The Idea of Law (1987) 173.
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 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 autochthonous[2] 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.
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'.
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 statute[3] but the primary constitutional document of Australia, because the Westminster Parliament has ceased to have any domestic constitutional role in Australia.[4] Even the Queen acts as Queen of Australia (not the United Kingdom) when acting as Australian head 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.
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 Canada[13] - might seem fated to be content with autonomy and not autochthony. However, this perceived inactivity, or even apathy, is not, and should not be, either the cue or the justification for the High Court to step in and tidy up, in constitutional terms, what Australians are unwilling to do for themselves.
At this point some might ask '[w]hy does autochthony matter?' and is it not, only 'the concern of sensitive Dominions and fussy persons?'[14] Prima facie autochthony does not matter constitutionally or legally, because autonomy is, arguably, the more important constitutional value. That said, autochthony may matter emotionally or symbolically; witness the current republican debate. Michael Detmold has also said that 'autonomy does not need autochthony ... but autochthony is oddly attractive'.[15] Further, in a very practical sense, much of the present debate promoting popular sovereignty as a 'theoretical' and autochthonous explanation of the Constitution, might bring forth unintended and unforseen legal consequences, quite possibly in constitutional interpretation. As Leslie Zines has noted, '[i]t might be suggested that popular sovereignty places a constitutional restriction on legislative power by requiring the parliament to act only for the benefit of the people, its constitutional ruler'.[16]
Whilst in 1902, Harrison Moore was able to dismiss any 'doubt or speculation as to the theoretical origin or legal foundation of the Commonwealth and the Constitution',[17] Andrew Fraser has rightly noted that there now appears a 'persistent doctrinal confusion over the sources of legitimate constitutional authority in Australia'.[18] As a result of the 'implied rights cases', it is argued that the High Court has created a constitutional and theoretical 'riddle' concerning which legal principle should be seen as sustaining the Constitution.
The legal source of the Constitution is the United Kingdom Parliament, because Australia's constitutional arrangements are still legally derived from, but not subordinate to,[19] the United Kingdom Parliament which enacted the Constitution as (part of, not merely a schedule to) one of its statutes. This statute, even after the Australia Acts, has not ceased to hold its paramount status. It is clear that existing Imperial Acts applicable to Australia in 1986, continue in force after 1986 until amended or repealed by valid Australian legislation.[20] This applies particularly to the Constitution Act, and the Constitution it incorporates. As John Daley has noted: 'One can only identify the provisions of [the Constitution] exhaustively by reference to the enactments of the Imperial Parliament... [Therefore] a body may remain the authority for legislation made in the past, even if that body lacks the authority to legislate in the present'.[21] Moreover, 'there is no difficulty ... as long as authority is distinguished from continuing power ... Thus the common law may recognise the Westminster Parliament as the authority for the Australian Constitution and also recognise that any continuing power in the Westminster Parliament has ceased'.[22] Therefore, any attempt by the Westminster Parliament to repeal or amend any of Australia's basic constitutive documents would be met with Australian rejection and disdain. In all probability, the High Court would regard the unwanted law as having no status at all: the law would be a nullity in Australia.[23] As Geoffrey Marshall has noted: '[P]reservation of the British historical and legal root is compatible with its being the case that the Westminster Parliament is no longer able to legislate for [Australia]...'[24]
The political source of the Constitution might be the people of Australia (or possibly the electorate) [25] because in political terms, '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'.[26] As such 'the Constitution is only "homegrown" in a practical, not legal, sense'.[27] Further, it is in this practical sense only, that the people of Australia should be regarded as ultimately sovereign.
Several Justices of the High Court have attributed the phrase 'ultimate sovereignty' to the people of Australia. However, it is often not clear in what sense it is being used. Does it mean 'legal' or 'political' or both, or something else again? Both Mason CJ in Australian Capital Television v Commonwealth[28] (‘ACTV’) and, elsewhere, Dawson J[29] have resorted to use of the phrase. It seems unlikely, however, that both Justices used it to mean the same thing. It would appear Mason CJ used it to signify political and legal sovereignty, much like McHugh J was to signify in Ridgeway v The Queen[30] and McGinty v Western Australia.[31] However, four years later Mason reiterated his views from ACTV about the passage of the Australia Acts, but stated that it was now possible to say 'that political sovereignty resides in the people'.[32] In this respect the word 'political' is substituted for the word 'ultimate' as used in ACTV. On the other hand, Dawson J appears to have consistently used 'ultimate' to signify 'political' sovereignty, in the sense that the people's will is ultimately obeyed.
Nicholas Aroney has suggested that some members of the High Court have 'recently expressed interest in finding an autochthonous source for the Australian constitutional system'.[33] Often, this trend has been based upon consideration of the Australia Acts. However, it is not clear that the scheme of the Australia Acts amounted to such an invitation. In confirming that Australia is autonomous, some Justices[34] have made a further step in reasoning, which does not necessarily follow. They have argued that the traditional legal basis of the Australian Constitution has been discarded because it can no longer sustain the perceived practical reality of a substituted basis; that is, the sovereignty of the Australian people.
I agree with comments that such assertions amount to a 'radical relocation of sovereignty'[35] and 'grossly exaggerate the impact of the Australia Act 1986 (UK)'.[36] As Moshinsky has noted, it is not clear that the legal independence of Australia brought about by the passage of the Australia Acts has 'altered the source of the authority of our Constitution'.[37] Independence does not necessarily imply a legal break. To be sure, although the Australia Acts did sever the future legal relationship between the United Kingdom and Australia, legal continuity was preserved and no constitutional void resulted. However, there certainly existed a gap in Australian domestic legislative power. The Acts dealt with this by regularising and recognising Australia's legal separation, and should therefore be correctly interpreted as a remedial redistribution of British legislative authority, to fill the gap in favour of the Australian parliaments. In effect, the supremacy of the Australian parliaments under the Constitution was substituted for the sovereignty of the Westminster Parliament.[38]
If one adopts the view that the Australia Acts created a void[39] in constitutional authority, it might well be necessary to discern an 'alternative' (but maybe even only 'additional') local legal constitutional source.[40] After all, it is recognised that our legal system (and arguably constitution) must have a legal fons et origo (source and origin). However, popular sovereignty is only one possibility, it is not the 'default setting'. Others include authority derived from a divine being, or from the State itself, or from indigenous-non-indigenous reconciliation or even from provincial autonomy reflected in a federal compact.[41]
This article argues that if the traditional legal basis is to be discarded by the High Court, a federal compact between the colonies as polities, (or even the people of the colonies) is a more historically correct interpretation of federation than a social contract[42] based upon popular sovereignty. Whilst the agreement between the colonies to federate was not legally binding because the Constitution obtained its juristic force from the United Kingdom Parliament, the absence of that parliament from Australia's constitutional arrangements might require a fresh analysis of the legal status of the agreement. Further, the potentially powerful effect of the unanimity evident in the passage of the Australia Act 1986 (Cth) and the resultant 'unanimity procedure' embodied in s 15 of the Act adds weight to the argument that the Constitution may now be seen as a compact. A similar view has recently been espoused by Nicholas Aroney:
'The Imperial Parliament abdicated its legislative capacity concerning Australia, and the unanimous action of the States took its place ... as the ultimate source of authority in the Australian federation... [T]he Constitution Act is now binding due to the unanimous agreement of the States...' [43]
Further, '[w]hile it has for many years been regarded as a heresy to refer to the Constitution as a compact',[44] this view could, in light of the Australia Acts, be seen as unnecessarily restrictive. Greg Craven has made the point that '[a] compact theory of federation, is, if anything, rather more plausible in Australia after the collapse of Imperial supremacy than it was before that event'.[45] Thus Aroney further comments that:[46]
[M]ost accounts of the search for the basic rule [of the Australian legal system] have been skewed by an (unhistorical) camber in favour of regarding the Australian 'people' as an undifferentiated (and rather undefined) whole, without regard to the States into which they are organised and, more importantly, without regard to the federative compact which, from an autochthonous and legal point of view, brought the federation into being.[47]
Therefore, it is now open for some to view the Constitution as a federal compact, as it is open for others to view it as social contract. Indeed, the federal compact view has a much stronger historical pedigree. James Thomson has noted:
'[h]istorically, the Australian Constitution was not formally approved by the people acting as a collective entity. Rather it was endorsed by enfranchised citizens voting as members of individual and distinct colonies'.[48]
This views the people who voted to accept federation as inhabitants of their respective colonies (and of course British subjects), not citizens of the Commonwealth[49] organised into a single national unit. A problem common to both 'social contract' and 'federal compact' paradigms, however, is that it might (although not necessarily) involve a pre-Engineers[50] approach to interpretation. This might require 'an interpretation of the Constitution ... which is formed on a vague, individual conception of the spirit of the compact [or contract]'.[51]
In spite of the Australia Acts' limited mandate, many sponsors of popular sovereignty have cited their passage as the decisive and defining moment for the ascendancy of popular sovereignty and the acquisition of autochthony. Mason CJ in ACTV was emphatic 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'.[52]
On one level it is difficult to dispute the first proposition of Mason CJ's statement. However, does it necessarily follow that the beneficiary of this relinquishing of sovereign power is the Australian populace and not the Australian parliaments? Where is it recognised that this redistribution of Westminster sovereignty should become the property of, and 'embedded in'[53] the Australian people?
Neither version of the Australia Acts make any reference to 'the people of Australia', let alone anything that could be construed as an invocation of the 'people as a legislator', or even a declaration of popular sovereignty. Moreover, as the local version was not approved by referendum, the scheme of the Australia Acts could not be said to have taken place within a popular framework. In fact, the scheme took place within a federal framework, based squarely on state unanimity. The Australia Act 1986 (Cth) was enacted pursuant to s 51(xxxviii) of the Constitution, that is, by the Commonwealth Parliament at the request and concurrence of all the States. This unanimity then authorised the United Kingdom legislation (pursuant to s 4 of the Statute of Westminster) at the request and with the consent of, the Commonwealth Parliament and Government.
Popular sovereignty is, in terms of Australia's constitutional arrangements, an ahistorical[54] and nebulous[55] concept. Many of its proponents, however, are not deterred by mere history (constitutional or otherwise) and consequently 'admit that the paradigm ... is not justified by history, but argue that this dissonance is irrelevant'.[56] Many sponsors point to the fact that an unstated premise of the Australia Acts is that s 128 is now the only method of altering the Constitution, and that by virtue of its popular provisions, the people (as a single national unit) are now the legal source of constitutional authority.[57]
However, at least five points can be made in response:
In the Constitution of the Commonwealth of course there is no absolute sovereignty, but a quasi-sovereignty which resides in the people of the Commonwealth, who may express their will on constitutional questions through a majority of the electors voting and a majority of the States. [63]
To achieve autochthony, an 'independent future [must be] irrevocably sealed off from the dependent past'.[69] The difficulty of explaining, in an autochthonous sense, Australia's removal from the orbit of the United Kingdom legal system is seemingly aggravated by a number of interrelated factors. The primary concern is the dilemma posed by the question of whose actions should be seen as legally decisive: those of the parent or those of the offspring? Discussed in Part II is the dominance of the traditional understanding of parliamentary sovereignty as 'continuing'. This promotes the view that the parent 'cannot protect its statutes from repeal, because no one sovereign parliament could effectively bind a future sovereign parliament'.[70] On this view the United Kingdom Parliament has not irrevocably ceded legal authority to Australia. However, an alternative to the traditional theory, the 'self-embracing' theory, mentioned above, recognises that the United Kingdom Parliament can limit or terminate its own powers, and therefore its actions can be seen as 'genuinely abdicative'.
There is no absolute standard here. Both versions are comprehensible and neither can be logically preferred for all legal systems.[71] Discussed in Part III is the dominance of a strict view that for any offspring to obtain autochthony, a break in legal continuity must occur. (This is really a corollary of the 'continuing' view of sovereignty). However, a less strict view emanating from the work of Geoffrey Marshall will also be canvassed.[72]
Around the time the British Empire began reinventing itself into the more egalitarian Commonwealth of Nations,[73] the traditional understanding of parliamentary sovereignty was often forcefully stated. In respect of s 4 of the Statute of Westminster it was said by way of obiter dicta:[74]
It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed the Imperial Parliament could, as a matter of abstract law, repeal or disregard s 4 of the Statute.
As such, s 4 of the Statute was 'not an express abdication of power to legislate for the Dominions, but redefine[d] the legislature which [could] enact a statute extending to a Dominion ... to include the relevant organ of the Dominion as well as the three parts of the British Parliament'.[75] It therefore seemed possible to view the sovereignty of parliament as accepting restrictions of manner and form. Much more controversial however would be restrictions of substance.
To be sure, the traditional theory's perceived inadequacies were only brought into sharp focus when the United Kingdom Parliament ultimately purported to divest itself of a portion of its sovereign power and abdicate[76] its ability to legislate for the Dominions.[77] By the time the British Parliament had terminated all legislative power for Canada in 1982, the 'continuing' view was under serious threat, though still undecided. In dealing with a challenge to the Canada Act 1982 (UK), Sir Robert Megarry V-C in Manuel v Attorney General[78] made important observations which neatly emphasise the difficulty of considering autochthony at the hands of the parent. Megarry V-C referred to that 'abstract' part of traditional theory that holds that even if a 'convention had grown up that the United Kingdom Parliament would not legislate for that colony without the consent of the colony. Such a convention would not limit the powers of Parliament'.[79] The Vice-Chancellor then referred, in obiter dicta, to the judgment of Viscount Sankey LC in British Coal Corporation v The King[80] to suggest that the result would not be different even if the convention had matured into a provision within an Act of Parliament, and that even that provision could be repealed without consent. Such is the power of the traditional view taken to its logical conclusion.
However, Megarry V-C had to admit that even though it would be 'correct in British law'[81] to say that the United Kingdom Parliament 'could as a matter of abstract law' repeal a statute granting independence to a country,[82] it could not do so effectively. This is because any such repeal 'will not make the country dependent once more; what is done is done, and is not undone by revoking the authority to do it'.[83] Similar concerns were also recognised by Murphy J in Bistricic v Rokov[84] where his Honour mooted that the United Kingdom Parliament 'could ... repeal the Statute of Westminster ... [and] the Constitution Act. But such repeals would have no effect in Australia'.[85] However, there appear subtle variations in the respective reasoning. The Vice-Chancellor seems at pains to maintain the distinction between continuing 'legal validity' and 'practical enforceability' (for the United Kingdom), whilst Murphy J discards legal validity because it cannot conform to, or explain, practical reality.[86]
This discarding of legal concerns in favour of practically expedient ones (or the blurring of the two), seems to typify many of the judgments in the 'implied rights cases', which promote popular sovereignty as the new legal basis of the Australian Constitution. However, no matter what putative time is ascribed for the legal sovereignty of the Australian populace, there are both historical and legal problems, as well as 'considerable theoretical difficulties'. In the face of such criticisms, many sponsors see the need to conflate the distinction between 'legality' and 'legitimacy'.[87] Professor Finn has noted, 'Dicey's two sovereignties appear to be coalescing as they did in the United States more than two centuries ago'.[88] However, I would argue that while the 'two sovereignties' can be fused, such momentous problems require and demand a 'clear democratic decision' by the Australian people through the parliamentary democratic process.
Further, no matter how forcefully legal considerations are eschewed by judges and jurists, theories such as continuing sovereignty, which may be 'suspect'[89] as divorced from reality in their application to Australia, can still exercise considerable influence. This is because 'conventional and practical considerations seem precarious pegs on which to hang the independence of ... any ... modern legal system'.[90] As Marshall has noted: '[W]e are operating at the untested limits of the traditional doctrine'.[91]
Increasingly, many argue that the traditional understanding of sovereignty must give way to a new view described as 'self-embracing'. It is only by adopting this new view that a sovereign parliament (such as Westminster) could be deemed to have brought 'its omnipotence to an end',[92] without the need for intervention by the offspring. Thus it would seem that if the notion of autochthony is to be assessed successfully and decisively in terms of the actions of the parent, the self-embracing view must prevail. Proponents of this theory suggest 'the better view is that without a break in legal authority, the UK Parliament can irrevocably cede authority over an area to a new constitutional structure'.[93] Indeed, there now seems no theoretical or practical justification for the continuing authority of the United Kingdom Parliament.
Such notions were tested when Canada cautiously addressed the exercise of independence, by 'patriating' the BNA Act 1867 (UK) in 1982.[94] But even as late as 1981, the Supreme Court of Canada had acknowledged that the United Kingdom Parliament's powers to legislate for Canada were 'unimpaired' and 'undiminished'.[95] However, as Peter Oliver has noted, the Court did not say, and was not asked to say, 'whether those powers were sovereign in a continuing or self-embracing sense'.[96] The difficulty for Canadians was that patriation took the form of another United Kingdom statute - the Canada Act 1982 (UK) - which was of course 'the gift of the United Kingdom parliament, not the Canadian peoples'.[97] As a result, patriation threw up the paradox that 'the legal continuity represented by Canada's strict adherence to existing legal procedure ... is widely assumed to have achieved a break in continuity'.[98]
According to Oliver, this paradox is only resolved by 'consider[ing] the matter not as a question of British constitutional theory ... but rather as a question of Canadian constitutional theory regarding the evolution of the ultimate legal principle of the Canadian legal system'.[99] If such concerns are 'understood as a matter of British constitutional theory the answer could only be indefinite or qualified' because 'British legal opinion leaned and arguably still leans toward continuing sovereignty'.[100] Oliver's argument is persuasive and achieves the desired autochthony by recognising that the 'ultimate rule of recognition' [101] of the Canadian legal system has evolved to the point where Westminster sovereignty can be viewed as self-embracing. This is because the ultimate rule of recognition can have a certain core (Parliament is sovereign) but an uncertain penumbra (is it continuing or self-embracing sovereignty?).[102] Given that the penumbral question was always an open question, Oliver explicitly rejects the presence of any break in legal continuity in Canada's arrangements. Oliver therefore eschews the need to use Kelsen's grundnorm.[103] To be sure, an appeal to Kelsen could not comfortably accommodate legal continuity while explaining Canada's legal escape from Westminster sovereignty.
In Australia, much academic writing is supportive of the promotion of popular sovereignty into Australia's fundamental constitutional arrangements, but at the same time is paradoxically reticent about assessing the change as paradigmatic.[104] Similarly, to my knowledge, no High Court Justice has expressly recognised, at least in curial writings, the need to presuppose a new Australian 'ultimate rule of recognition' (or grundnorm for that matter). This is in spite of the fact that some have been able to discern a new popular legal basis for the Constitution.
Like Canada, Australia's independence could also be considered a 'gift of the United Kingdom Parliament, not the Australian peoples'. However, in one sense Australia has gone further than Canada, by re-enacting the Australia Act 1986 (UK). As a result, signs that the High Court is prepared to consider such notions in terms of Australian, and not British constitutional theory can be found in the majority judgment in Sue v Hill.[105] As pointed out by Anne Twomey, the majority made the assumption that 'the Australia Act 1986 (Cth) is fully effective and that the application of the Australia Act 1986 (UK) may be completely disregarded'.[106] Chris Horan further points out: 'One consequence of [relying on the Commonwealth version of the Australia Act 1986 as effective to remove the last vestiges of Imperial authority] is to avoid the theoretical problems raised by the abdication of sovereignty from a United Kingdom viewpoint'.[107] However, Marshall has suggested that it is the local re-enactment, not the British Act, that may be 'legally redundant'.[108] So too, Professor Zines has noted a dispute over which version is operative, '[i]f s 51(xxxviii) did not support the Australia Act 1986 (Cth), the British Act by nature of its paramount force would'. Moreover, 'any attempt to regard the whole of the Australia Act as based on Commonwealth constitutional power is impossible'.[109]
Thus, while the basic precept of an abdicating Westminster Parliament may have gained many adherents, there does not seem to be unanimous agreement on what the 'self-embracing' theory represents. That is whether it can only truly be understood as a matter of Australian, not British, constitutional theory. Moreover, the pervasiveness and seemingly inextinguishable allure of the traditional theory should not be underestimated. For even though many would assert that practically the 'continuing' sovereignty of the United Kingdom Parliament is unlikely to make a difference, it would be surprising to leave a theoretical explanation of independence unresolved. If it transpires that the traditional view of the parent's sovereignty was to engender most support, the following view would probably obtain: 'Any measure of emancipation at the hands of the Imperial Parliament [for example, the Australia Act 1986 (UK)] ... suffer[s] from the vital flaw that it [is] revocable at the Imperial Parliament's pleasure ... [N]othing that Westminster could do would remove this taint from its gifts'.[110] In the end the better view might be that, any legal consequences of the actions to date by the United Kingdom in respect of autochthony are at best equivocal. As a result, the search for autochthony would likely need to focus on the actions of the offspring, and possibly revolutionary (peaceful and legal) concerns to seal off the past.
As demonstrated by increasing numbers of Australia's near neighbours, the rule of law can too often be a fragile construct. Australia is indeed fortunate to have seen a greater amount of this important constitutional value during its century of evolution from former Dominion to sovereign state. However, might there not be a time when a once only peaceful (if tacit) breach, is required to bring to an end the emotive notion of Australia as a derivative of an Imperial ancestor?
In contemporary Australia, the drive for autochthony is unlikely to be an isolated phenomenon. It will most likely be (although it does not have to be) connected with the desire to achieve republicanism. Other political forces, previously evident in other former self-governing Dominions, such as apartheid in South Africa, conflict with Britain in Ireland, and the drive for independence in India, are not present in Australia.[111]
Mark Moshinsky’s valuable discussion of possible methods of achieving autochthony identifies a number of methods by which the Constitution Act might be repealed and the Constitution re-enacted as an Act of the Australian Parliament. He concluded that a peaceful legal revolution is the most desirable way for Australia to re-enact the Constitution. However, Moshinsky only discussed re-enacting the current monarchic Constitution as an Australian Act. He did not question the effect of removing the Crown in the search for autochthony, but for the purpose of his labours, 'assumed that the Constitution itself would be re-enacted in identical terms'.[112]
Whilst this is a possibility, it seems more likely that any Australian constitution-making in the twenty-first century will undoubtedly have a republican flavour. Any possible removal of the Crown and substitution with the sovereignty of the people adds another dimension to the task at hand. If this is achieved by unauthorised means there would be negative consequences for legal continuity, but positive consequences for autochthony. If this is achieved by authorised means the converse may be true.[113]
According to the strict view, to achieve autochthony, nothing less than a contrived break in legal continuity will suffice.[114] This is usually undertaken by adopting new constitutional arrangements in a manner unauthorised by the pre-existing constitution. When an offspring initiates such a break (no matter what view the traditional theory takes of the parent's powers), such action may prove to be legally decisive. This is because the offspring has repudiated the very source of its autonomy. A revolutionary shift in the grundnorm occurs and the validity of the new constitutional order cannot be traced by a 'stream of authority' back to the parent. It must therefore be said that the strict view owes much to Kelsenian theory.
Oliver cites the Irish Constitution as an example of a constitution 'no longer connected to Westminster; it now has a root in popular sovereignty'.[115] He then continues, 'this transition was revolutionary (at least in the legal sense) or autochthonous'.[116] So too, some New Zealand commentators (but especially F M Brookfield) have been able to discern a discontinuity by 'disguised revolution' in New Zealand's 1986 independence arrangements. Although sounding drastic, such a 'revolution' would, in the Australian context, be benign as 'all that is required is to change a legal principle without changing in any way the legal behaviour' [117] to replace the weary Imperial turtle with an Australian one. Before, during and after such a peaceful revolution, Australians would still recognise the Constitution as the supreme law of the Commonwealth, and that a 'once only breach in the rule of law is required'.[118] But in enacting a truly autochthonous Constitution, the people should realise they are exercising both their political and legal sovereignty. As a result, the chain of legal continuity that can be traced back (with the exception being from 1649 to 1660) for almost one thousand years,[119] would be broken.
The problem with the strict view requiring a break in continuity is that Australians have shown an unfailing desire to conform to existing constitutional procedures for sanctioning legal change. As such, Australians seem unlikely to adopt a new constitution by unauthorised means. Even so, such conformity in no way prevents the achievement of an Australian republic. Australia's current constitutional arrangements are entirely adequate to facilitate republican change, (even if there is dispute over which particular procedures should be used). But, if autochthony is the goal, more is needed. To this end, is there a way for Australians to 'have their constitutional cake and eat it too?'[120]
What would be the effect of a Commonwealth Act passed pursuant to s 15(1) of the Australia Acts which purported to repeal - not merely amend - the Constitution Act?[121] It is not explicitly clear that merely amending, or even repealing, s 8 of the Statute of Westminster will authorise the repeal of the Constitution Act.[122] Stephen Gageler and Mark Leeming[123] are of the opinion that the Constitution Act can be repealed (by the use of s 15 and other necessary provisions) as easily as it can be amended.[124] Could such action secure autochthony? Moshinsky concluded that, according to the strict view, such an authorised process would not amount to a break in legal continuity and therefore could not achieve true autochthony.[125] However, I would favour an interpretation that repeal of the Constitution Act by this process could secure autochthony.
A repeal of the Constitution Act in toto would mean that it would be 'no longer possible for the [offspring] to invoke a logically prior [parental] legislative power'.[126] Such repeal would repudiate the source of Australia's legislative autonomy and deny a legislative gift was ever made. The effect would be that the Constitution Act no longer has any legal force in Australia. With the Constitution Act removed from the constitutional landscape, the only claim to authority of the Australian Constitution would spring from within Australia itself. As a result, a claim could be made that a break in legal continuity took place. In other words, the process would be 'evolutionary' (not being based on a revolutionary assertion of power) but the effect would be 'revolutionary'.[127] This accords with Marshall's view (to be discussed shortly) that an offspring may claim a break in legal continuity even though the process relied upon ultimately derived from an externally-prior legislative power. After all, whether legal continuity has been broken or not may well be the subject of differences of opinion.
However, since the current constitutional arrangements do contain a significant democratic element, it would be necessary to obtain substantial popular approval. If popular approval was obtained in all the States,[128] at least two benefits would result. First, it could be said that the now solitary Constitution (or any new constitution subsequently enacted) would have been adopted by the spontaneous will of the people. It 'would appear on its face to be an expression of the national will'[129] but really expressed in the units of States. Secondly, the judiciary would not be placed in a difficult position as a popular 'majority in all six States would [effectively] place the legitimacy of the new order beyond doubt'.[130] Further, Moshinsky has noted, 'a constitutional change designed to achieve autochthony has inherent validity'.[131]
If Australians were of a mind to institute a 'technical' break in legal continuity, the following course might be undertaken. James Thomson cites Geoffrey Sawer as suggesting:[132]
Perhaps the best way of dealing with this is to put to the people as a constitutional amendment a declaratory provision stating that the sovereignty of the United Kingdom Parliament ends on a named future date and is replaced by that of the Australian people.
This sort of proposal has a great deal to commend it. Had such a proposal been put to the people and accepted to take effect from 3 March 1986, the constitutional arrangements of Australia (in respect of grundnorm and autochthony issues) might no longer be in such hot academic debate. In the end, however, the Australia Acts alone could only achieve so much. By s 1 the sovereignty of the United Kingdom Parliament was brought to an end, thereby fulfilling the first proposition of Professor Sawer's proposal. However, their failure to use 'unauthorised means' spelt disaster for autochthony, (but was a vindication for the most important constitutional value - the rule of law). Moreover, the failure to invest legal sovereignty democratically in the Australian people makes contestable the identity of the true beneficiary of the power formerly exercised by the United Kingdom Parliament.
However, this does not mean that Australia cannot adopt such a course even today. A plebiscite (then referendum) question could include a declaratory provision similar to that suggested by Professor Sawer, along with a Constitution Alteration Bill for Australia to become a republic. The declaratory provision should assert that 'all the prerogatives of the Crown and the sovereignty of the Queen are transferred to the people'.[133] Further, as Moshinsky has suggested: '[T]he Australian Parliament, probably after having secured popular approval, [could] declare the Constitution Act no longer has any legal force in Australia...'.[134] This could be achieved by repealing the Constitution Act as discussed above, thereby enhancing the claim for autochthony. So too, the requirement for popular approval in all the States should be insisted upon.[135]
It is argued such a course of action could put to rest many of the strictly legal views noted throughout this article, and bring other opportunities forward. Primarily, the Crown is replaced with the sovereignty of the people, and as such the people constitute both the political and legal bases of the Constitution. In other words, the Constitution is proclaimed in the name of the people.[136] Further, the whole process, including a successful plebiscite or referendum, the declaration, the repeal of the Constitution Act and the enactment of a new constitution, could be seen as a fundamental repudiation of the existing legal order thereby securing autochthony by a 'technical' break in legal continuity, and a 'disguised revolution'.[137]
At this point, I concede that some might consider it doubtful whether a declaration that is based on a United Kingdom derived power can be effectively revolutionary. This is because the old order is not intentionally violated by a revolutionary assertion of power. However, I argue that the important aspect to consider in the declaratory process is that the old order is violated not by unauthorised legislative means, but by the people withdrawing allegiance to the sovereign constitutional authority possessed by the current monarch. Lastly, as a consequence, academic observers of this process might be constrained to posit a new ultimate rule of recognition (or even grundnorm) in order to explain the validity of the new legal system.
Professor Sawer also noted that if such a measure as the declaratory procedure is not adopted 'we may find yet the High Court in a suitable case ... doing it for us by a sort of judicial UDI, taking effect on the date of the decision'.[138] It would appear that this scenario has exercised a marked attraction for some members of the High Court. As a result of some judgments in the 'implied rights cases', it could be asked whether the High Court has already altered Australia's constitutional arrangements.[139]
Geoffrey Marshall has argued that there is no need for an unauthorised break to secure autochthony. In his 1971 work he identified three criteria of autochthony. Further, according to Marshall, legal continuity (or more accurately, lack of it), is only one criterion. Thus, autochthony may still be achievable even without the enactment of new constitutional arrangements by unauthorised means. Marshall's criteria are:[140]
(i) whether all processes for constitutional change are locally operated;
(ii) whether in the enactment [and arguably amendment and repeal] of constitutional provisions, legal continuity has been broken (or claims made that it has been broken);
(iii) whether with or without (i) or (ii), the people or possibly the bench, regard the constitution as authoritative because of acceptance of it.
Phillip Joseph and F M Brookfield have profitably applied these criteria to New Zealand, Joseph concluding that 'the Constitution would be autochthonous according to the first and third of Marshall's criteria'.[141] Brookfield adds the temporal elements to Joseph's claim,[142] but also recognises the break in legal continuity brought about by the Constitution Act 1986 (NZ),[143] referred to in the second criterion. The question of whether similar claims might be made for the present constitutional system of Australia is now considered.
As Joseph has stated, '[w]hether all processes for constitutional change are locally operated ... appears to be an indicium of autonomy rather than autochthony'.[144] Thus, as argued above, to equate the popular provisions in s 128 with the achievement of autochthony does not necessarily follow. However, even if this criterion is considered an indicium of autochthony, I nonetheless dispute the view that s 128 is the best measure of it. This is in view of s 128's inability to amend or alter the Constitution Act. In other words, the location of a power to amend the Constitution - in contrast to the power to amend all of Australia's basic constitutive documents - might not be the best indicium of autochthony. However, since s 15(1) of the Australia Acts (admittedly in conjunction with other provisions) can be used to amend and even repeal both the Constitution Act and the Constitution (with the appropriate popular support), s 15(1) is a better measure of both municipal sovereignty and autochthony.[145] According to this view, Australia has been autochthonous since 1986. However, by virtue of the state unanimity required in s 15(1) it would be a type of autochthony based upon the federal compact not any form of social contract giving rise to popular sovereignty.
Australia is not presently autochthonous as assessed against this criterion; legal continuity has not been broken. However, Marshall only requires the offspring to claim that continuity has been broken. It is not necessary to point to any specific unauthorised enactments. This criterion seems to accommodate the Canadian situation, where some make such a claim, but paradoxically there are no unauthorised procedures. In Australia, unless the assertions of popular sovereignty can be seen to represent such a claim, more is required. However, this criterion could be used to explain the repeal of the Constitution Act (and a declaration of popular sovereignty) as outlined above.[146] A claim that continuity had been broken could be made, even though the process utilised was authorised. Such a process might allow Australians to preserve both legality and legitimacy, while at the same time achieving autochthony. First, the use of s 15 of the Australia Acts would allow respect for the rule of law as represented by legal continuity. Secondly, requiring state unanimity in obtaining popular approval would allow respect for federalism and democracy. It remains to be seen whether Australians are as unwilling to claim breaks in legal continuity as they are unwilling to cause them.
This criterion seems to encapsulate Hart's notion of a change in the rule of recognition.[147] According to Hart, the rule of recognition 'could... change over time, in accordance with the courts' and officials' changing attitudes towards that which should be recognised as valid law in the legal system ... but Hart provided little insight into how that transformation might take place'.[148] Joseph noted that each legal system must ask itself: 'What is the courts' and officials' internal viewpoint?'[149] However, Hart devotes only one paragraph to the situation where 'the unity among officials [and courts] ... may partly breakdown'. He notes, '[i]t may be that, over certain constitutional issues ... there is a division within the official world ultimately leading to a division [over the content of the rule of recognition] among the judiciary'.[150] All that could be done, according to Hart, 'would be to describe the situation ... and note it as a substandard, abnormal case containing within it the threat that the legal system will dissolve'.[151] Although Hart's strong language was directed to the constitutional crisis that gripped South Africa in 1954,[152] the 'persistent doctrinal confusion over the sources of legitimate constitutional authority in Australia' [153] could be seen as a 'partial failure of the normal conditions... [of] congruence...'.[154]
Further, it is not clear that a majority of Australians, including officials, view the original enactment of the Constitution in the Constitution Act as merely an 'historical fact'.[155] This is despite Hart's assertions that a 'local root' is established when the Westminster Parliament no longer has the ability to legislate for a former Dominion.[156] Moreover, while it is possible to discern a majority of High Court Justices that do favour the promotion of a local root founded in popular sovereignty, unanimity is scarce regarding the symbolic or theoretical concept of popular sovereignty worthy of occupying the apex of the Australian constitutional system. In effect, uniform and coherent reasoning is markedly absent from the materials and statements. As such, 'until such a position is formally taken by a clear majority of the High Court ... it is submitted that traditional legal principles should continue to be followed'.[157]
Has there already been a peaceful legal revolution in Australia? Some lawyers now argue that the Constitution 'was' law because of its original embodiment in a British enactment, but because of British abdication in 1986, 'is now' law because of the acceptance by the Australian people of the Constitution, and their preparedness to live peaceably under it. In this sense the British Parliament is no longer regarded as standing behind Australia's constitutional institutions.[158] Professor Zines has made this point:
'The basic constitutional instruments were law because they were enacted by a superior law-maker. They are now law because they are accepted as fundamental legal rules of [the] system and the basic constitutive documents of [the] community'.[159]
It was also made by the 1988 Constitutional Commission:[160]
As [the British] Parliament no longer has any authority in Australia, the legal basis of the Constitution no longer rests on any paramount rule of obedience to that institution. The legal theory that sustains the Constitution today is its acceptance by the Australian people as their framework of government.
This 'acceptance' argument appears to be the second half of the argument utilised by Deane J in Theophanous v Herald & Weekly Times Ltd,[161] which embraced both 'adoption' by referenda (to be discussed shortly) and current 'acquiescence' as the touchstones of popular sovereignty. It is noted that Professor Zines's and the Commission's view have the attraction of recognising the original authority of the British Parliament.[162] Professor Zines's view has the further attraction of not necessarily promoting a 'norm higher than the Constitution' itself.[163] Geoffrey Lindell's view that the legally binding character of the Constitution is now derived from the will of the people has a further attraction. It is presented as an 'additional though not necessarily alternative, way of explaining the binding nature of the Constitution.’[164] Justice Deane's view (in Theophanous), and Murphy J's view in Kirmani v Captain Cook Cruises Pty Ltd [No.1],[165] have none of these attractions. Indeed, the correctness of Murphy J's view in Kirmani has been questioned as being inherently and manifestly improbable.[166] Moreover, Deane J (in Theophanous) used Lindell's discussion as an alternative rather than additional argument, which Lindell specifically cautioned against.[167]
As such, this whole acceptance argument is not without difficulties. Even Marshall has noted the word 'acceptance' is ambiguous.[168] Accordingly, the 'acceptance' or 'acquiescence' argument is to be given the short answer that at most it explains in political terms - not in legal terms - why the Constitution is binding. This is so for at least three interrelated reasons. The first reason has been consistently alluded to by Dawson J: there is a cogent argument for maintaining a firm distinction between 'legality' and 'legitimacy'. The legal reasons for obedience to the Constitution may not be the same as the moral reasons for obedience. As such, it is no contradiction for one to assert that, as a matter of legal theory, the legal basis of the Constitution is its passage through the Imperial Parliament, while at the same time one recognises that, as an abstract proposition of political theory, one actually accepts and obeys the Constitution because it is Australia's fundamental law.[169] The motive for obeying the Constitution (the moral justification) is to be found in the study of political obligation (the concept of 'authority' is probably more helpful than 'sovereignty').[170] However, the validity of the Constitution is to be found in the study of legal theory supported by history. In the language of Hart and Kelsen, the 'previous rule of recognition [or historically first constitution] remains a necessary means to identify the content of currently valid law'.[171]
Secondly, proponents of the 'acceptance' view can provide no empirical data to confirm such an assertion. In fact there is such data existing directly rebutting the theory: 'just under one in five Australians have some idea of what the Constitution contains ... [which] cannot amount to maintenance of the Constitution by the acquiescence of the people'.[172] It would seem that to have any credence, the acceptance theory would need to at least show a 'bare majority of Australians' adhere to it. Consider a question posed to Australians as to why they still considered the Constitution as Australia's fundamental law? Some, if not many, might answer that the Constitution was, and still is law because it had been enacted by the United Kingdom Parliament.[173] This would not be an incorrect answer.[174] Thirdly, and as a corollary, one cannot be sure that the attitude of the Australian people has changed sufficiently to transform the rule of recognition to one based on popular acceptance.
The complexity of explaining the acceptance of the Australian Constitution has been well noted.[175] This is because the legal and political sources of constitutional authority are not one and the same. In the United States they are, and as a result, the notion of acceptance by a contemporary society seems especially applicable to the US Constitution. Even though the 'We The People' of today played no part in the adoption of the US Constitution, there is no other authoritative source to invoke but the 'mundane adherence to the status quo'. Thus in both legal and political theory 'the [US] Constitution is authoritative because [Americans] believe and act as if it is'.[176]
Daley has noted, '[i]f the crucial characteristic of popular will is the effective power to bring about legal change, then sovereignty must have been transferred much earlier than the passage of the Australia Acts'.[177] However, arguments that promote the Australian populace as sovereign sometime before 1986, might represent 'very quaint aberration[s] ... of constitutional history'.[178] Indeed, such arguments can be questioned on a number of levels. First, sponsors who assert that the popular vote approving the draft Constitution is the legal authority of the Constitution, have to contend with arguments that the vote was hardly popular.[179] Secondly, even though the Constitution was on one level approved by the Australian electors, such action should only be seen as a 'mere antecedent historical circumstance'.[180] The newly agreed upon draft document remained just that, a consensual document, until it was enacted by the Westminster Parliament. Witness also the failure of the historic claim that the Imperial Parliament lacked legitimacy to amend the draft Constitution. Those involved in Federation 'were prepared to pay a real price for Imperial legitimacy',[181] that is, Colonial Office interference in the form of s 74 of the Constitution which provided for the continuing supervision of the Privy Council over Australian Courts. Thirdly, if the people of Australia were truly sovereign, why did they (through their representatives) feel it necessary, in 1986, to go 'cap in hand' to request the United Kingdom Parliament to 'pass a statute concerning them at all?'.[182] The simple answer might be that Australia's attainment of full independence was incomplete. Moreover, 'out of a perceived need for abundant caution'[183] reversion to Westminster legislation was sought. But since 1986 more, not fewer, of Australia's constituent documents are to be found in the statute book of the United Kingdom.[184] This action, far from recognising the popular basis of the Constitution, clearly demonstrated an acceptance of the 'legislative supremacy of the United Kingdom Parliament'.[185] It further demonstrated that a peaceful legal revolution, accepted by the Australian people, to remove such legislative power, had not occurred any time before 1986. Fourthly, 'even if one supposes that the people did consent to the Constitution prior to Federation, this consent is irrelevant to obeying the Constitution today'.[186]
At first blush, it would appear each of Marshall's criteria are distinct[187] and if any one criterion is satisfied, autochthony is achieved. However, as Joseph has argued 'autochthony is most likely to be successfully asserted when all the criteria are satisfied'.[188] Therefore, the better view would be that although Australia seems autochthonous by virtue of Marshall's criterion (i), the requirements of which are met by s 15(1) of the Australia Acts 1986, and possibly also by virtue of criterion (iii), the matter is inconclusive and still awaiting determination.
It might also be said that Marshall was using the term 'autochthony' in a sense different from that employed by Wheare. Indeed, Hogg suggests '[Marshall] is really using it as equivalent to patriation'.[189] In this sense one might use Marshall's criteria to secure patriation for the Australian Constitution, but as Aroney argues ''true' or 'complete' patriation requires autochthony'.[190]
This article has noted an apparent confusion between autochthony and autonomy. Some might consider it 'unsatisfactory [and symbolically inappropriate][191] for the legal authority of the Constitution of an independent nation to be derived from an external source'.[192] However, it is certainly not intrinsically illogical nor incongruous. Moreover, in Australia's constitutional arrangements, continued derivation does not imply continued subordination. If there is 'no national indignity in acknowledging legal continuity',[193] one wonders why there is indignation in acknowledging legal derivation. 'The symbolism of deriving the Constitution's authority from another country is only superficially inappropriate. At a more mature level, such a derivation is inevitable'.[194] Furthermore, Australia's autonomous arrangements are satisfactorily explained by this article's earlier emphasis on both complete independence and legal continuity. After all, it has been noted that 'legitimacy emerging over time can be at least as powerful as legitimacy expressed at a particular moment in a country's history'.[195]
However, it was also concluded that the search for autochthony is firmly in the hands of Australians. To rely on our British parent is unsatisfying and equivocal. Similarly, to rely on the High Court is unsatisfying, disturbingly undemocratic and at present highly confusing.[196] The process should not be left to the judiciary alone to bring Australia's constitutional and legal arrangements into line with practical realities, even if that is thought necessary. It should involve all the constituent components of the federation including of course the vital popular element.
Marshall's three criteria provide a guide for the attainment of autochthony. According to Marshall's first criterion (a local amending procedure), Australia may already be autochthonous on some level. Further, if one accepts the veracity of Marshall's second criterion (merely claiming a break in legal continuity), autochthony can be achieved without the necessity for a break in continuity. As such, if Australia was to repeal the Constitution Act,[197] autochthony could be secured. However, in doing so Australians would need to claim that the effect was 'revolutionary'. This would be despite resorting to an 'evolutionary' process that relied on a power which in ultimate terms was externally-derived. Finally, if Australia was to declare autochthony based upon a declaration of popular sovereignty,[198] autochthony could be secured by means of a peaceful legal revolution.[199] Again 'the process is evolutionary but the effect revolutionary'.[200] The people’s withdrawal of allegiance to the current monarch would violate the old order and institute a 'technical' break in continuity.
However, if the first criterion does not apply, and the second criterion is not invoked, the issues may then be left to the High Court. If the traditional legal basis of the Constitution is then to be discarded, I have argued that the federal compact should be seen to be the substitute, not popular sovereignty.
Further, if the issues are left to the High Court, autochthony could be achieved if the popular sovereignty thesis were 'sufficiently refined'[201] (that is, clearly defined as to a theoretical or symbolic role, and unambiguous as to the true beneficiaries) and received the support of the majority as the legal basis of the Constitution. This would be because of the acceptance of the 'new attitude' probably according with Marshall's third criterion, and Hart's rule of recognition.
The essential condition to determine whether constitutional arrangements have been annulled is the efficacy of the change. However, because of the largely inconclusive state of the authorities at present, it is impossible to predict with certainty whether or not the popular sovereignty revolution will succeed and if so, in what form.[202] Until the content of the Australian grundnorm or rule of recognition is finally determined, and an Australian turtle is unequivocally installed, the Australian elephant may no longer be sure underfoot.
[**] 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 Conference 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 Imperial predecessor and exist as a complete and self-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 position with respect to autochthony is by no means as strong', Mark Moshinsky, 'Re-enacting the Constitution in an Australian Act' (1989) 18 Federal Law Review 134, 135.
[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).
[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 (emphases added).
[7] China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172, 183 (Barwick CJ).
[8] Phillip Joseph, 'Foundations of the Constitution' [1989] CanterLawRw 5; (1989) 4 Canterbury Law Review 58, 69.
[9] Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 675 (Gleeson CJ, Gummow and Hayne JJ), quoting Southern Centre of Theosophy Inc v South Australia [1979] HCA 59; (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 this 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.
[13] Peter Oliver suggests that this is '[p]robably, due in part to the fact that Australia had benefited early on from the highest degree of constitutional independence of any of the three'. Peter Oliver, 'The Constitution of Independence', Paper delivered to the Australia and New Zealand Law and History Society, Melbourne, 4 July 1998 (copy on file with author).
[14] R Dawson, quoted in Queensland Constitutional Review Commission, Issues Paper (1999) 212.
[15] Michael Detmold, The Australian Commonwealth (1985) 95, 105.
[16] Leslie Zines, The High Court and the Constitution (4th ed, 1997) 417. See also recent comments of Kirby J in Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501, 516: ‘The significance of the contemporary realisation that the foundation of Australia’s Constitution lies in the will of the Australian people has not yet been fully explored’; Moshinsky, above n 1, 135: 'The source of authority of the Constitution has significant consequences for the way in which the powers of government are exercised and interpreted'; James A Thomson, 'The Australian Constitution: statute, fundamental document or compact?' (1985) Law Institute Journal 1199; and Geoffrey Lindell, 'Expansion or Contraction? Some Reflections About the Recent Judicial Developments on Representative Democracy' [1998] AdelLawRw 11; (1998) 20 Adelaide Law Review 111, 144, where Lindell warns of 'inherent dangers' in using the notion of popular sovereignty 'as a factor in constitutional interpretation'. But cf George Winterton, 'Popular Sovereignty and Constitutional Continuity' [1998] FedLawRw 1; (1998) 26 (1) Federal Law Review 1, 5.
[17] W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 66-67.
[18] Andrew Fraser, 'False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution' [1994] SydLawRw 17; (1994) 16 Sydney Law Review 213, 215-216 citing Mason CJ in Australian Capital Television v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 138 (‘ACTV’).
[19] In this respect I question Joseph's interpretation, above n 1, 397, of the effects of one legal system being derived from another. This article rejects the view that a legally derived (but now fully autonomous) system must necessarily in any way (historically or otherwise) remain subordinate. As Professor Winterton has noted, '[i]t is surely to confuse continuity with subordination'. Winterton above n 16, 7, quoting Geoffrey Marshall, Constitutional Theory (1971) 63. See also, John Daley, The Bases for the Authority of the Australian Constitution (1999) unpublished D Phil thesis, Oxford, ch 5.3 (copy on file with author): '[A] legislature whose authority is derived from a source need not remain subordinate to that source' and further '[T]he rhetorical desire to assert that Australia's constitutional law is independent of any other country is [often] based on the mistaken belief that derivation from a source implies subordination' ibid ch 5.6.3. Further, although a break in legal continuity would deny legal derivation, there would never be any point in denying Australia's historical derivation.
[20] China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172, 195 (Gibbs J). See also, the recent 'Treaty of Versailles' cases of Joose v Australian Securities and Investment Commission [1998] HCA 77; (1998) 159 ALR 260 and Helljay Investments Pty Ltd v Deputy Commission of Taxation [1999] HCA 56; (1999) 166 ALR 302.
[21] Daley, above n 19, ch 5.3.
[22] Detmold, above n 15, 95. See also, Moshinsky, above n 1, 144.
[23] Also noted by Hogg, above n 2, 56 in relation to Canada. See, the comments of Gleeson CJ, Gummow and Hayne JJ in Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 666 where the same is implicit.
[24] Marshall, above n 11, 207 (emphasis added). Moshinsky similarly notes, 'acceptance of the traditional view that we do not have an autochthonous constitution, does not necessarily mean that the British Parliament can repeal or amend the Constitution Act', above n 1, 136.
[25] A V Dicey, Introduction to the Study of the Law of the Constitution (1st ed, 1885; 10th ed, 1959) 73-76 distinguished between 'legal' and 'political' sovereignty, attributing the former to the King-in-Parliament and the latter to electors. The current political or moral basis of the Constitution is however, a matter of some controversy. For a detailed investigation of the moral legitimacy of obeying the Constitution, see Daley, above n 19, ch 5.6.2: '[T]he moral authority of the Constitution never rested simply on the fact that it was legally derived from the Imperial Parliament'. See also, Jeremy Kirk, 'Constitutional Interpretation and Evolutionary Originalism' (1999) 27 Federal Law Review 323, 339.
[26] ACTV [1992] HCA 45; (1992) 177 CLR 106, 181 (Dawson J).
[27] Moshinsky, above n 1, 136.
[28] ACTV [1992] HCA 45; (1992) 177 CLR 106, 138.
[29] Commonwealth v Mewett (1997) 191 CLR 471, transcript of oral argument 6/8/96 from web, 12/9/99, http://www.austlii.edu.au/do/disp...ipts/1995/M42/8.html; 9.
[30] [1995] HCA 66; (1995) 184 CLR 19, 91 (citing Mason CJ in ACTV).
[31] [1996] HCA 48; (1996) 186 CLR 140, 230
(citing Mason CJ in ACTV). See also, Michael Wait, ‘The Slumbering
Sovereign: Sir Owen Dixon’s Common Law Constitution Revisited’
[2001] FedLawRw 3 
; (2001) 29 Federal Law Review 57, 70: ‘Upon gaining independence,
legal sovereignty, relinquished by the Imperial Parliament, was therefore vested
in the Australian
people, uniting in them both legal and political sovereignty,
or "ultimate sovereignty", citing Mason CJ in ACTV and McHugh J in
McGinty.
[32] Sir Anthony Mason, 'The Interpretation of a Constitution in a Modern Liberal Democracy' in Charles Samford and Kim Preston (eds) Interpreting Constitutions: Theories, Principles and Institutions (1996) 13-30, 30 (emphasis added).
[33] Nicholas Aroney, 'A Public Choice? Federalism and the Prospects of a Republican Preamble' [1999] UQLawJl 9; (1999) 20 University of Queensland Law Journal 262, 284.
[34] See particularly, ACTV [1992] HCA 45; (1992) 177 CLR 106, 138 (Mason CJ); Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 70-72 (Deane and Toohey JJ); Leeth v The Commonwealth (1992) 174 CLR 455, 484 and 486 (Deane and Toohey JJ). See also, Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 89 (Toohey J), where his Honour in effect repeated his and Deane J's view from Nationwide News; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 91 (McHugh J); McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 230 and 237 (McHugh J). Further Justices such as Brennan CJ (when on the bench) and Gaudron, Gummow and Kirby JJ are increasingly concerned to look for ways to protect individual rights, and all accept as a starting point that the people of Australia are sovereign. However, it would appear that neither Gaudron nor Gummow JJ (nor possibly Kirby J) have explicitly claimed that such sovereignty is now the legal basis of the Constitution.
[35] Leighton McDonald, 'The Denizens of Democracy: The High Court and the 'Free Speech' Cases' (1994) 5 Public Law Review 160, 182.
[36] Winterton, above n 16, 10, although Professor Winterton argues 'the Constitution has long been based on popular sovereignty', ibid, 9.
[37] Moshinsky, above n 1, 144. See also, Daley, above n 19, ch 5.5.4: 'The attainment of Australian independence does not necessarily imply that authority for the entire legal system transfers to another source'; Peter Hanks and Deborah Cass, Australian Constitutional Law (1994) 18, arguing that such independence 'need not affect the original rationalisation for the paramountcy of the Commonwealth Constitution'; and Winterton, above n 16, 6.
[38] Keith Mason, ‘The Rule of Law’ in Paul Finn (ed), Essays on Law and Government, Volume 1 (1995) 114, 123: ‘the parliament[s] may be supreme, but they are not sovereign in the sense that Dicey claimed that the British Parliament was sovereign. The distinction between supremacy and sovereignty is critical’. See also, Paul Finn, 'A Sovereign People, A Public Trust', ibid 1, 4, n 24 noting the view that: 'parliaments under our Constitutions [are] the 'Supreme Sovereigns' in this country'.
[39] Professor Finn used the phrase 'apparent void' because 'divergent views can be taken on this matter', ibid.
[40] See, Aroney, above n 33, 285 citing H W R Wade, 'The Basis of Legal Sovereignty' [1955] Cambridge Law Journal 172, 192: 'The Courts will then have to search for an autochthonous source of bindingness'. See also, Michael Kirby, 'Constitutional Interpretation and Original Intent' [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1, 7. Unless Australians are prepared to accept Gilbert's notion of two grundnorms, the question may come down to either s 15 of the Australia Acts or s 128 as the source. See, Aroney, above n 33, 287: '[I]f the Imperial Parliament has now abdicated its legislative powers over Australia, legal theory seems to require that we understand, at least one of these powers as the source, rather than a tributary, of the stream'; Geoffrey Lindell, 'Why is Australia's Constitution Binding? - The Reasons in 1900 and Now, and the Effect of Independence' [1986] FedLawRw 2; (1986) 16 Federal Law Review 29, 40; R D Lumb, 'The Bicentenary of Australian Constitutionalism: The Evolution of Rules of Constitutional Change' [1988] UQLawJl 1; (1988) 15 University of Queensland Law Journal 3, 32 and Christopher Gilbert, 'Section 15 of the Australia Acts: Constitutional Change by the Back Door' [1989] QUTLawJl 4; (1989) 5 Queensland University of Technology Law Journal 55, 66-68.
[41] Frank Scott, Essays on the Constitution: Aspects of Canadian Law and Politics (1977) 248-249. Michael Waite has suggested that in Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, Gleeson CJ, Gummow and Hayne JJ regard the ultimate legal sovereignty as vested in the Crown thus, in some form, restoring a Dixonian constitutionalism; Waite above n 31, 72.
[42] See also, Nationwide News, (192) [1992] HCA 46; 177 CLR 1, 70 (Deane and Toohey JJ); ACTV [1992] HCA 45; (1992) 177 CLR 106, 136 (Mason CJ), 210-211 (Gaudron J), 228 (McHugh J) cited by Nicholas Aroney, Freedom of Speech in the Constitution (1998) 253 n 30. Of the present Court, Kirby J appears the most prepared to canvas notions of fundamental and deep lying rights that have never been ceded by the people and that may even have been jealously reserved. See, Michael Kirby, ‘Deakin – Popular Sovereignty and the True Foundation of the Australian Constitution’ 1997 Deakin Law School Public Oration, delivered 28 January 1999 (copy on file with author); Durham Holding Pty Ltd v New South Wales (2001) 75 ALJR 501, 511.
[43] Aroney, above n 33, 290-292. In this sense, the Australia Acts might be seen as 'a novation of the federal compact, a new fundamental agreement between [the] Commonwealth and States', Latham, above n 12, 527.
[44] Zines, above n 16, 308.
[45] Greg Craven, 'A Few Fragments of State Constitutional Law' (1990) 20 Western Australian Law Review 353, 362.
[46] Aroney, above n 33, 288 (emphases added).
[47] However, one problem is that for the federal compact to create an autochthonous Commonwealth, the colonies would need to be considered autochthonous. This might be difficult in light of the countervailing necessity to refer to Imperial legislation in their creation. For, how do the people voice their 'ultimate sovereignty' if not by some legally created mechanism (the colonies) and which body created that mechanism (The Imperial Parliament)?
[48] Thomson, above n 16, 1201.
[49] Finn, above n 38, 3, n 15.
[50] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.
[51] Ibid, 145 (Knox CJ, Isaacs, Rich and Starke JJ).
[52] [1992] HCA 45; (1992) 177 CLR 106, 138 (emphasis added). I assume that Mason CJ intends 'ultimate' to include political and legal. See, Zines, above n 16, 394: 'Mason CJ, therefore, spoke of the people as heirs to the British parliament.'
[53] McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 237 (McHugh J).
[54] Justice Hutley has said, 'Australia does not have to pretend that power comes from the people. The polity has an historical legitimacy which America does not have'. Frank Hutley, 'The Legal Traditions of Australia as contrasted with Those of the United States' (1981) 55 Australian Law Journal 63, 64.
[55] See, D A Smallbone, 'Recent Suggestions of an Implied 'Bill of Rights' in the Constitution, Considered as a Part of a General Trend in Constitutional Interpretation' (1993) 21 Federal Law Review 254, 269: 'In an age which has demonstrated that democracy can exist without constitutional recognition of the concept of popular sovereignty, there is no need to adopt so dangerous and unsatisfying a notion into the fundamental fabric of our Constitution'. Daley, above n 19, ch 5.6.1 notes that popular sovereignty is not even 'a desirable fiction'. Further, as Professor Zines has noted, '[i]t is difficult to be certain in clear legal terms what the notion of the sovereignty of the people means. The concept of sovereignty of the people ... must be regarded as either purely symbolic or theoretical', above n 16, 395-396. As Aroney has noted, '[i]n either case, there is a problem of definition, which must be addressed'. Aroney, above n 33, 288. See also Waite, above n 31, 72: ‘the vesting of sovereignty in the people is apt to create confusion.’
[56] Harley G A Wright, 'Sovereignty of the People – The New Constitutional Grundnorm?' [1998] FedLawRw 7; (1998) 26 Federal Law Review 165, 184.
[57] See below n 147 and accompanying text for other arguments suggested to sustain the theory of popular sovereignty as the source of authority of the Constitution; ie, approval of the Constitution by 'acceptance' and/or by 'referenda'.
[58] See, Fraser, above n 18, 217: 'Section 128 establishes a procedural condition precedent to the exercise of the constituent power vested in the Commonwealth Crown-in-Parliament, not an alternative locus of sovereign authority'. Further, as Professor Winterton has noted, '[t]he s 128 electors derive their authority from the Constitution and, therefore, logically cannot constitute the source of its authority', above n 16, 7 n 47.
[59] [1996] HCA 48; (1996) 186 CLR 140, 237. In this respect relying on Bryce's notion that 'ultimate sovereignty' resides with 'the authority (whether a Person or Body) which made and can amend the constitution', James Bryce, Studies in History and Jurisprudence (1901) Vol 2, 53. However Bryce might be thought to be equating 'ultimate' with 'political', because he further attributed 'legal sovereignty' to the legislature (conjointly with the amending body).
[60] Winterton, above n 16, 4-5. Nor even in the US for that matter, where that popular constitution is 'amended by means other than a direct, popular vote', Aroney, above n 33, 272 citing Gilbert, above n 40, 67.
[61] Winterton, above n 16, 5. See also, Sir John Latham, 'Interpretation of the Constitution' in R Else-Mitchell (ed) Essays on the Australian Constitution (2nd ed, 1961) 1, 4.
[62] As such Greg Craven's 'perennial question [still] rings out: "Which people, and in what units?"', above n 45, 360. See also, Kirk, above n 25, 341. Gummow J in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 274-275 emphasised the federal considerations in s 128 which circumscribe the popular provisions.
[63] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1st ed, 1901, 3rd ed, 1995) 988. See also, the recent comments of Aroney: '[I]f a theory of 'popular sovereignty' is presupposed by the federal constitutional system, it is a theory which contemplates various configurations of "people[s]" constituting their governments in their varying capacities.' Nicholas Aroney, 'Federal Representation and the Framers of the Australian Constitution' in Gabriel Moens (ed) Constitutional and International Law Perspectives (2000) 13, 44.
[64] See, Leslie Zines, 'The Sovereignty of the People' in Michael Coper and George Williams (eds) Power, Parliament and the People (1997) 91-107, 95: '[T]he sovereignty attributed to the people has a quite different effect, and probably a different meaning, from that previously possessed at Westminster'.
[65] Daley has noted, '[i]f Australia has 'popular sovereignty' because the people have the power to amend, then to the same extent Australia has "Commonwealth Parliamentary sovereignty"', above n 19, ch 2.5.1.
[66] Fraser, above n 18, 217: 'Far from establishing the 'ultimate sovereignty of the people' section 15 of the Australia Act (UK) actually made it possible for the Commonwealth and state parliaments acting together to bypass section 128'. See also, McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 275 (Gummow J).
[67] Daley, above n 19, ch 6.4.5.
[68] Noted by Hart, above n 69, 149; Latham, above n 12, 533; Marshall, above n 19, 45-47 and I Jennings, The Law and the Constitution (5th ed, 1959) 151-172.
[69] Marshall, above n 19, 57.
[70] Dicey, above n 25, 39-41 and 67-68. See also, H L A Hart, The Concept of Law (2nd ed, 1994) 149. R T E Latham pointed out (citing Dicey) that this is because 'established constitutional doctrine held that it was in strict law impossible for the Imperial Parliament to put it beyond its own power to repeal any of its own Acts' (emphasis added), Latham above n 12, 530. See also, Wheare, above n 2, 111 and Wade, above n 40, 187-189.
[71] Peter Oliver, 'The 1982 Repatriation of the Constitution of Canada: Reflections on Continuity and Change' (1994) 28 La Revue Juridique Themis from web, 24/3/00, http://www.droit.umontreal.ca/pub/themis/94vol28n2-3/OLIVER.html; 17. A separate line of research might canvas whether there are intermediate positions.
[72] Marshall, above n 19, 57-64. See text accompanying n 140 below.
[73] The Balfour Declaration was the result of proceedings at the 1926 Imperial Conference. The declaration read in part: 'They [Great Britain and the Dominions] are autonomous communities within the British Empire, equal in status, [and] in no way subordinate one to another in any aspect of their domestic or external affairs'. The Statute of Westminster was a result of proceedings at the 1930 Imperial Conference.
[74] British Coal Corporation v The King [1935] AC 500, 520 (Viscount Sankey LC) (emphasis added).
[75] George Winterton, 'The British Grundnorm: Parliamentary Supremacy Re-Examined' (1976) 92 Law Quarterly Review 591, 603.
[76] According to the traditional theory of parliamentary sovereignty, the very fact of legislative abdication is disputed. A sovereign parliament cannot abdicate part of its sovereignty. It can only abdicate its sovereignty entirely, that is by dissolving itself, leaving no successor, or by transferring permanently its entire legislative authority to a new legislative body: Peter Oliver, 'Cutting the Imperial Link' in Phillip Joseph (ed) Essays on the Constitution (1995) 368-403, 394, n 145, quoting Marshall, above n 11, 209. See also, Wade, above n 40, 196, n 69 and D Lloyd, The Idea of Law (1964, rep 1987) 182. See also, Attorney-General (NSW) v Trethowan (1931) 44 CLR 394, 425-426 (Dixon J). However, H W R Wade has discussed a distinction between 'cession of territory' and 'cession of Parliament's powers, meaning the omnipotence of future Parliaments'. He views the former as uncontroversial and notes that 'Parliament has... repeatedly accepted limitations of its sovereignty in conferring independence...' However, if the latter were accepted a 'technical revolution' (albeit disguised or camouflaged) has taken hold. As such, the former may amount to a partial abdication of sovereignty: H W R Wade, 'Sovereignty – Revolution or Evolution?' [1996] 112 Law Quarterly Review 568, 573-575.
[77] This occurred by means of a series of 'Independence Acts' commencing as early as 1947 with the Indian Independence Act 1947 (UK) s 6(4) and, in more patient quarters, by the Canada Act 1982 (UK) s 2, the Constitution Act 1986 (NZ) s 15(2) and the Australia Act 1986 (UK) and (Cth) s 1.
[79] Ibid, 87.
[81] Hart, above n 69, 121.
[82] [1983] 1 Ch 77, 88-89. Not expressly overruled on this point, although the Court of Appeal appeared not to proclaim such a wide view of the traditional theory, [1983] 1 Ch 95, 105.
[83] Ibid, 88. See also, Ndlwana v Hofmeyr [1937] AD 229, 237: 'Freedom once conferred cannot be revoked'.
[84] [1976] HCA 54; (1976) 135 CLR 552.
[85] Ibid, 567.
[86] Murphy J stated that: 'In my opinion (notwithstanding many statements to the contrary) Australia's independence and freedom from United Kingdom legislative authority should be taken as dating from 1901': Ibid. See also, Deane J in Kirmani v Captain Cook Cruises Pty Ltd [No. 1] [1985] HCA 8; (1985) 159 CLR 351, 442 where his Honour intimated that 'it may be necessary at some future time to consider whether traditional legal theory can properly be regarded as providing an adequate explanation of the process which culminated in the acquisition by Australia of full "independence" and "Sovereignty"'.
[87] See, Fraser, above n 18, 222: 'Those who insist that the "real" genesis of the Constitution lies in its acceptance by the Australian people have further eroded the already shaky boundary between law and politics'.
[88] Finn, above n 38, 4.
[89] Murphy J in Bistricic v Rokov [1976] HCA 54; (1976) 135 CLR 552, 566-567 quoting and commenting on Viscount Sankey LC's judgment in British Coal Corporation v The King [1935] AC 500, 520.
[90] Peter Oliver, 'Canada, Quebec, and Constitutional Amendment' (1999) 49 University of Toronto Law Journal 519, 561. See also, Oliver, above n 76, 394.
[91] Marshall, above n 11, 209.
[92] Marshall, above n 19, 45.
[93] Daley, above n 19, ch 5.4.7.
[94] The BNA Act was renamed the Constitution Act 1867. Like autochthony, 'patriation' is a troublesome concept with any one of a number of standards and definitions.
[95] Reference re Amendment of the Constitution of Canada (Patriation Reference) [1981] SCR 753, 799, 801.
[96] Oliver, above n 71, 3.
[97] Joseph, above n 8, 70 and n 1, 412.
[98] Oliver, above n 71, 2.
[99] Ibid, 13.
[100] Ibid, 19. See also, Oliver, above n 90, 562.
[101] Whilst H L A Hart admitted that his thesis of an ultimate rule of recognition, providing authoritative criteria for the identification of valid legal rules, resembled Kelsen's grundnorm and Salmond's 'ultimate legal principle', validity for him, was a question of fact. Unlike Kelsen's grundnorm, which was a juristic assumption or postulation, the rule of recognition could be established by an appeal to the facts, ie, to the actual practice of the courts and officials of the system. See, Hart, above n 69, 292-293. See also, n 147 below and text accompanying.
[102] Oliver, above n 76, 398.
[103] The concept of a grundnorm was developed by Hans Kelsen as a pre-supposition in juristic thinking. It is the highest norm in any national legal order, and by identifying it, the jurist is able to interpret all subsidiary norms as valid, and as a non-contradictory field of meaning. All subsidiary norms can be traced hierarchically back to the grundnorm, each subsidiary norm being validated by the norm above it: Hans Kelsen, The Pure Theory of Law (2nd ed, 1970) 208. John Finnis in his seminal article has said that Kelsenian theory is 'incapable of explaining how a legal system might divide into two independent systems by process of law', John Finnis, 'Revolutions and Continuity in Law' in A W B Simpson, (ed) Oxford Essays on Jurisprudence (Second Series) (1973) 44-76, 60 (emphasis added).
[104] See, Winterton, above n 16. But contrast some jurists have been prepared to assess the elevation of popular sovereignty as amounting to a change in the 'grundnorm of constitutional interpretation': Wright, above n 56, 165. See also, McDonald, above n 35, 161-162. According to Mahoney P in Egan v Willis and Cahill (1996) 40 NSWLR 650, 685: 'The effect ... and purpose [of the Australia Act, was] to alter the grundnorm of the Australian legal system'; Waite above n 31, 70 commenting on Mason CJ’s Judgment in ACTV [1992] HCA 45; (1992) 177 CLR 106 and McHugh J’s judgment in McGinty [1996] HCA 48; (1996) 186 CLR 140 who argued that: 'these developments have, without overstatement, been described as revolutionary.'
[105] [1999] HCA 30; (1999) 163 ALR 648, 665-666 (Gleeson CJ, Gummow and Hayne JJ).
[106] Anne Twomey, 'Sue v Hill - The Evolution of Australian Independence' in Adrienne Stone and George Williams (eds) The High Court at the Crossroads (2000) 77-108, 100.
[107] Chris Horan, 'Commentary' in Stone and Williams ibid, 109, 117-118.
[108] Marshall, above n 11, 207.
[109] Zines, above n 16, 305 and 308. Similarly, Gummow J in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 138-9 noted that it is unnecessary to decide whether 51(xxxviii) is sufficient to support the Australia Act 1986 (Cth) because 'the Constitution continues to speak to the present by taking into account the operation of the Australia Act 1986 (UK)'.
[110] Latham, above n 12, 530.
[111] Moshinsky, above n 1, 151.
[112] Ibid, 137.
[113] By whatever means it is achieved, the people must be elevated to a legal constitutional role to replace the Crown, so that the arms of government are constantly reminded of where they derive their constitutional power. Many have noted that the ARM 'minimalist' model did away with the 'impartial' and 'apolitical' Law-Giver (the Crown) without replacement, or on another view, substituted a political one: the Commonwealth Parliament. See, Martyn Webb, 'Republicanism Means More Than Removing The Queen: Lessons from America 1776-1787' from web, 11/01/99, http://www.norepublic.com.au/Pages/Essay _Webb _No_Case_Paper.htm; 5-6. See also, Alan Atkinson, The Muddle-Headed Republic (1993) 51.
[114] The strict view was espoused by Wheare above n 2, 111. It was also asserted by Stanley De Smith and Rodney Brazier (eds) Constitutional and Administrative Law (7th ed, 1994) 70; James A Thomson, 'Altering The Constitution: Some Aspects of Section 128' (1983) 13 Federal Law Review 323, 344-345; Enid Campbell, 'An Australian-made Constitution for the Commonwealth of Australia' in Report of Standing Committee D to the Executive Committee of the Australian Constitutional Convention (1974) 95, 100, and approved by Moshinsky, above n 1, 150-151, thereby requiring him to conclude that 'if constitutional autochthony is all important, only the [peaceful legal revolution] method will do'.
[115] Oliver, above n 90, 560. Oliver is thus in agreement with Wheare above n 2, Joseph above n 1 and Moshinsky above n1.
[116] Oliver, above n 90, 560.
[117] Scott, above n 41, 249.
[118] Oliver, above n 90, 608.
[119] Justice Kirby has noted this (almost) unbroken legal lineage of a millennium. Michael Kirby, 'The Struggle for Simplicity, Lord Cooke and Fundamental Rights', paper delivered to the New Zealand Legal Research Foundation Conference, April 1997 from web, 29/01/99, http://www.hcourt.gov.au/cooke.htm; 2. Others would however suggest other discontinuities also, eg, 1688-89.
[120] Oliver, above n 76, 392.
[121] By repeal I mean repeal in toto. Only in this way might 'the current format of a national constitution contained in an Act of the Parliament of another country' be dispensed with, thus 'enhanc[ing] its status as a 'foundational' document': An Australian Republic, The Options-The Report, The Report of the Republican Advisory Committee (1993) Vol 1, 122.
By contrast, it could be argued the Constitution Alteration (Establishment of Republic) 1999 (Cth) did not purport to deprive the Constitution Act of legal force. The Constitutional Convention had recommended that any provisions of the Constitution Act that have no continuing force or relevance, should be repealed However, the Constitution (Requests) Bill 1999 (Qld) requested the Commonwealth not to repeal either the long title, the enacting words, the short title (covering clause 1) and covering clause 9 which contains the Constitution itself. According to the Bill, only covering clauses 2 to 8 should be repealed (clauses 5 and 6 were in fact to be incorporated into the Constitution itself; ss 126 and 127) and the existing preamble omitted.
The Commonwealth Parliament has not legislated in response to these requests and moreover, the Commonwealth was apparently relaxed about the need to delete the existing preamble (see, Constitutional Alteration (Preamble) Bill 1999 (Cth)) and most of the covering clauses. However, even in light of the more stringent requests from the States, the retention of the long and short titles meant that the Constitution Act would have remained in force, and further, still derived its legal authority from the Westminster Parliament.
[122] This is due in part to the uncertainty surrounding the true scope and effect of s 2(2) of the Statute of Westminster and s 51(xxxviii) of the Constitution, although the better view might be to adopt an interpretation that promotes the 'completeness of Australian legislative power': Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 638 (Dawson J). To amend the Constitution Act, the six State parliaments must first empower the Commonwealth (by the use of s 15(1) of the Australia Acts) to amend (not necessarily repeal, as Moshinsky and Gilbert suggested) s 8 of the Statute of Westminster to remove the limitation placed upon the Commonwealth. The limitation so removed, the Commonwealth Parliament would then be empowered by either s 2(2) of the Statute or s 51(xxxviii) of the Constitution, or both, to amend the Constitution Act. This was the method chosen by the States to implement changes to the covering clauses of the Constitution Act had the 1999 republican referendum been successful; see Constitution (Requests) Bill 1999 (Qld) and other uniform State request legislation. This also affirms the view that s 128 cannot amend anything outside what covering clause 9 of the Constitution Act defines as 'the Constitution of the Commonwealth'.
[123] Stephen Gageler and Mark Leeming, 'An Australian Republic: Is a Referendum Enough?' (1996) 7 Public Law Review 143, 151.
[124] If the repeal of the Constitution Act were considered unauthorised, the claim to autochthony would be automatically stronger.
[125] Moshinsky, above n 1, 150-151. However, he also notes a less strict view: 'Even if legal continuity were preserved ... so long as the enactment of the constitution took place in Australia, it would be legally homegrown'. Thomson's view of any such use of s 15(1) of the Australia Acts is that 'there would still exist an unbroken stream of authority flowing from the United Kingdom Parliament' above n 114, 344.
[126] F M Brookfield, 'Kelsen, the Constitution and the Treaty' (1992) 15 New Zealand Universities Law Review 163, 171.
[127] Joseph, above n 1, 122. See also, Oliver, above n 76, 391.
[128] As Moshinsky, above n 1, 151 has noted: '[I]t would have to be considered whether popular approval need also be received from a majority of voters in each State as it is arguable that it is in units of States that the popular will is expressed in Australia as a federation'. (emphasis added) Thus Moshinsky concludes (and I agree) that to obtain popular approval in all the States would be politically 'cautious' and 'desirable'. So too, Aroney has said '[T]he ultimate reason for turning to unanimity for the alteration [and repeal] of the Constitution Act is that it embodies the formative basis of the federation': above n 33, 290.
[129] Moshinsky, above n 1, 150.
[130] Aroney, above n 33, 271.
[131] Moshinsky, above n 1, 149.
[132] Thomson, above n 114, 344-345, n 138 (emphasis added).
[133] Such an assertion of popular sovereignty might take in part, the following form:
'Whereas all the constitutional authority ever possessed by the monarchs of the Crown of England and later imposed by the monarchs of the Crown of the United Kingdom of Great Britain and Ireland, and of the Crown of the United Kingdom of Great Britain and Northern Ireland over the Commonwealth of Australia, such allegiance is hereby withdrawn, and is now vested in the sovereign people of the Commonwealth Republic of Australia.'
(Adapted in small part from the Constitution of New Jersey 1776).
[134] Moshinsky, above n 1, 149.
[135] In terms of the Australian Commonwealth becoming a republic, such unanimity would in practice give one State the power of veto. Although on the other hand, for the sake of the unity of the federation, all the constituent elements should agree to become republican at the same time.
[136] As a result, the people can deal with their fundamental rights as they wish. They can place their faith in whichever institution they believe will best protect their liberty; that is, a parliament or a court. Varying methods might be utilised to protect judicially enforceable rights. A Bill of Rights (constitutionally entrenched or statutory) might be enacted. Rights may even be reserved (as distinct from those surrendered) by provisions similar to the Ninth and Tenth Amendments to the United States Constitution. Australians could also embrace indigenous reconciliation issues in any new constitutional arrangements, perhaps reflected in a treaty. Although, as Professor Finn noted, collective popular sovereignty 'poses a direct obstacle to acceptance of sovereignty in indigenous Australians', above n 38, 5.
[137] Wade, above n 40, 191-197.
[138] Noted by Thomson, above n 114, 344-345, n 138. Professor Sawer's reference to a 'judicial UDI' is to Madzimbamuto v Lardner-Burke [1968] 2 SA 284 where the High Court of Southern Rhodesia held the usurping government (Smith's UDI) in Southern Rhodesia in 1965 to be a 'lawful' de-facto government. On appeal however, the Privy Council held that the 'rebel regime' could not be regarded as lawful, since the United Kingdom Government was still taking steps to regain control: [1968] UKPC 2; [1969] 1 AC 645, 725 (Lord Reid). As Detmold has noted '[I]f in fact the revolutionary contest had been settled on the ground in favour of the new regime the Privy Council would have recognised it as legitimate': above n 15, 94. Marshall has noted that 'when a Commonwealth country asserts the homegrown nature of its legal system with Imperial approval and complicity, the sonorous label of autochthony is attached. However, if this assertion is contentious - as in Rhodesia - it is dubbed "UDI"': above n 11, 171.
[139] This is not to downplay the role of courts. At last resort, it is the judiciary that must recognise and thereby legitimate legal change. Witness the recognition of the illegally convened (and constituted?) Convention-Parliament that offered the English crown to William and Mary. Brookfield, above n 125, 165.
[140] Marshall, above n 19, 58-60 (emphasis added).
[141] Joseph, above n 1, 412, 414. Hogg, above n 2 has applied Marshall's criteria to Canada.
[142] Brookfield, above n 126, 172. In respect of the first criterion, Brookfield cites 1947. In respect of the third, he cites 'since the early 1970's if not well before', although not before noting 'some difficulties in the concept of acceptance'.
[143] Section 26(1) of the Constitution Act 1986 (NZ) repealed inter alia the New Zealand Constitution (Amendment) Act 1947 (Imp). Brookfield notes that New Zealand was not authorised to conduct such a repeal, and when it did so, a legal break was secured: ibid, 171. As such, the Constitution Act 1986 (NZ) (unlike the Canada Act 1982 (UK) and the Australia Acts) is seen as a unilateral repudiation of United Kingdom legislative power.
[144] Joseph, above n 1, 412-413: 'something more is required than a locally operating amendment process'. See also, Hogg, above n 2, 58.
[145] In a recent article discussing the debate surrounding the possible methods of altering the Constitution Act, Aroney describes the 'orthodox or conventional view' as holding that the alteration power contained in s 128 'does not extend to the Constitution Act'. He then cites Gageler and Leeming's suggestion, above n 123, that, as a result of s 128's deficiency, 'to be safe one must turn to ss 51(xxxviii) and 15(1)'. See, Aroney, above n 33, 274. However, Aroney also acknowledges two kinds of arguments that propose an extended role for s 128: repugnancy-based arguments and theory-based arguments.
[146] See above nn 121 - 139 and accompanying text.
[147] Joseph has pointed out that a new attitude of courts and officials also has a connection with Kelsen's grundnorm: above n 1, 121-122 and 398. However, it would seem that Marshall's reasoning is more comfortably understood in Hartian terms.
[148] Oliver, above n 71, 15.
[149] Joseph, above n 1, 414.
[150] Hart, above n 69, 122.
[151] Ibid, 123.
[152] See Harris v Donges [1952] 1 TLR 1245.
[153] Fraser, above n 18, 215-216.
[154] Hart, above n 69, 122. Even on a Kelsenian analysis, a 'lack of symmetry' may exist: Lumb, above n 40, 6, noted by Aroney, above n 33, 270.
[155] Hart, above n 69, 120.
[156] Ibid.
[157] Twomey, above n 106, 101.
[158] Marshall, above n 19, 58. It would appear the modern genesis of this notion can be traced to the horticultural comments made by Wheare about the Constitution being struck at Westminster but then transplanted to Australia, where it has since thrived: above n 2, 108-109 and also Hart, above n 69, 120.
[159] Leslie Zines, Constitutional Change in the Commonwealth (1991) 27. See also, Zines, above n 16, 318. However, Professor Zines indicates that this view does not necessarily elevate 'the People' to a fundamental legal norm: 'In other words [the Constitution] is our fundamental law and needs no further legal justification': Zines, above n 64, 93. Similar uncertainties that surround the legal basis of the Queensland Constitution are currently being addressed. The Queensland Constitutional Review Commission 'believes that such uncertainty should be brought to an end if possible... by making an unequivocal statement that the Queensland Constitution IS the fundamental law of the State by identifying it as the highest rule of the State's legal system': Queensland Constitutional Review Commission, Report on the Possible Reform of and Changes to The Acts and Laws that relate to the Queensland Constitution (2000) 24. Such a course would seem to overcome the difficulties surrounding the 'acceptance' argument and might also be considered for the Commonwealth Constitution.
[160] First Report of the Constitutional Commission (1988), vol 1, 107.
[161] [1994] HCA 46; (1994) 182 CLR 104, 171. In this respect Deane J seemed to follow Murphy J's reasoning in Kirmani v Captain Cook Cruises Pty. Ltd. [No. 1] [1985] HCA 8; (1985) 159 CLR 351 more closely than his own. Murphy J had stated, 383: 'The authority for the Australian Constitution then [1 January 1901] and now is its acceptance by the Australian people'.
[162] So too does Deane J's recognition in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 123 of 'the past authority of the United Kingdom Parliament'.
[163] Zines, above n 64, 93.
[164] Lindell, above n 40, 37 (emphases added).
[165] [1985] HCA 8; (1985) 159 CLR 351, 383.
[166] Noted by Greg Craven, Secession (1986) 138. See similar criticisms in China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172, 181 (Barwick CJ).
[167] Lindell, above n 40, 37, 44. See Lindell's recent concerns that his earlier 'additional' explanation has been developed in a way that may impact on constitutional interpretation: above n 16, 144.
[168] Marshall, above n 19, 60. See also, Winterton, above n 16, 4 n 30.
[169] See, ACTV [1992] HCA 45; (1992) 177 CLR 106, 181 (Dawson J). See also, Marshall, above n 19, 60.
[170] See, Daley, above n 19.
[171] Ibid, ch 4.1.2.
[172] George Williams, 'The High Court and the People' in Hugh. Selby (ed) Tomorrow's Law (1995) 271, 289. See also a poll conducted by I Saulwick in 1992 which found that 33 per cent of Australians did not even know that Australia has a written Constitution: referred to by Stephen Donaghue, 'The Clamour of Silent Constitutional Principles' [1996] FedLawRw 5; (1996) 24 Federal Law Review 133, 146, n 87. It is admitted these figures may now be higher in light of the media coverage surrounding the 1999 referendum.
[173] Craven, above n 166, 140.
[174] Also noted by Wheare, above n 2, 109.
[175] Ibid, 108.
[176] Allan Ides, 'Judicial Supremacy and the Law of the Constitution' (1999) 47 UCLA Law Review 491, 505.
[177] Daley, above n 19, ch 6.4.5.
[178] China Ocean Shipping Co v South Australia [1979] HCA 57; (1979) 145 CLR 172, 181 (Barwick CJ).
[179] Most women (all colonies except South Australia and Western Australia) and aboriginal Australians were denied the right to vote: noted by Zines, above n 16, 395-396. For a recent analysis of the categories of disqualification which plagued the franchise for the referenda, see, Anne Twomey, 'The Federal Constitutional Right to Vote in Australia' [2000] FedLawRw 6; (2000) 28 Federal Law Review 125, 144.
[180] Craven, above n 166, 76. Indeed, in this sense Australia's claim is much less than the referendum that approved the constitution of Eire in 1937. In that case, the approval of the people 'constituted the enactment of the document': Wheare, above n 2, 94. Still further, Australia's claim is less than that asserted in 1922 by the founders of the constitution of the Irish Free State, who claimed they were sitting as a constituent assembly, and that the Irish Constitution was not 'passed' but merely 'registered' by the United Kingdom Parliament, L Kohn, The Constitution of the Irish Free State (1932) 91.
[181] Daley, above n 19, ch 2.4.3, but cf Helen Irving, To Constitute a Nation (1997) 205.
[182] Michael Kirby, Introduction [1996] MelbULawRw 14; (1996) 20 Melbourne University Law Review 949, 950.
[183] Sue v Hill [1999] HCA 30; (1999) 163 ALR 648, 666 (Gleeson CJ, Gummow and Hayne JJ).
[184] Also noted by Hogg in relation to Canada: above n 2, 54.
[185] Craven, above n 166, 141.
[186] Daley, above n 19, ch 6.3.2.
[187] 'The criteria are not synonymous': Joseph, above n 1, 412.
[188] Ibid, 413: Even 'legal discontinuity is probably insufficient itself to establish a native legal root or local grundnorm'.
[189] Hogg, above n 2, 55, n 44.
[190] Aroney, above n 33, 271. Similarly Hogg concludes that 'if patriation means the securing of constitutional autochthony' patriation has not been achieved for the Canadian Constitution: above n 2, 55.
[191] Aroney, above n 33, 271 noting Moshinsky, above n 1, 135.
[192] Winterton, above n 16, 6.
[193] Ibid 7.
[194] Daley, above n 19, ch 5.6.1.
[195] Oliver, above n 90, 551, noting J Beetz, 'Reflections on Continuity and Change in Law Reform' (1972) 12 University of Toronto Law Journal 129.
[196] Winterton, above n 16, 2 has intimated that 'the outcome of constitutional litigation in the High Court [has become] highly unpredictable'. Similarly, Professor Zines has indicated that 'there is not... any general pattern or direction [in constitutional interpretation] at this stage': Leslie Zines, 'The Present State of Constitutional Interpretation' in Stone and Williams above n 106, 224-238, 238.
[197] See, above nn 121-131 and accompanying text.
[198] See, above n 132-139 and accompanying text.
[199] Wade, above n 40, 191-197: a 'disguised revolution'.
[200] Joseph, above n 1, 122.
[201] Craven, above n 45, 360.
[202] Adapted from the judgment of Lord Reid in Madzimbamuto v Lardner-Burke [1968] UKPC 2; [1969] 1 AC 645, 725 quoting in part Muhammed Munir CJ in The State v Dosso [1958] 2 PSCR 180, 185.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/FedLawRw/2001/11.html