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"The Common Law ... abhors infiniteness".[1]
Much has been said of the ascendancy of legalism in the recent jurisprudence of the High Court; both the judicial method and many of the substantive doctrines espoused by Sir Owen Dixon have been rejuvenated.[2] However, it is, as yet, unclear whether this legalist revival extends to the Court's understanding of constitutional sovereignty.[3] In Sue v Hill[4] Gleeson CJ, Gummow and Hayne JJ recently said that the Australian sovereign is "a constitutional monarch".[5] Despite its apparent orthodoxy, this statement raises many intriguing questions about ultimate authority under the Australian Constitution. In particular, it is unclear whether the recently appointed Australian people have retained their sovereign status[6] or whether that honour has been restored to the Crown.
This ambiguity is compounded by the decision of Lange v Australian Broadcasting Authority,[7] which despite remaining silent on the question of sovereignty, has been cited by both republicans and traditionalists in aid of their respective views. On the one hand Lange may appear to have signalled a retreat from theories of republicanism because, rather than relying expressly upon the authority of the people, the reasoning in that case was founded upon developments in the common law.[8] On the other hand, the principle espoused in Lange, that "the common law and the requirements of the Constitution cannot be at odds",[9] may be regarded as a correlative to the republican notion of sovereignty: if the Australian people have assumed the mantle of Australian sovereign then their written charter must take on the status of grundnorm and prevail, to the extent of any inconsistency, over the common law.[10]
This paper attempts to outline a somewhat novel interpretation of Dixon's constitutional jurisprudence and to resolve the current uncertainty regarding constitutional sovereignty by reference to it. In particular, it is contended that Dixon's jurisprudence may shed light upon Gleeson CJ, Gummow and Hayne JJ's recent declaration of the sovereignty of the Crown.
Despite Dixon's professed desire to avoid "merely metaphysical"[11] considerations, lest "theoretical speculation on the source of the law's authority ... find a place",[12] a careful reading of his judgments and extra-curial writings reveals a surprisingly unconventional theory of constitutionalism. Dixon rejected the constitutional paradigm of parliamentary sovereignty which prevailed throughout his career. In Dixon's view that doctrine was inconsistent with the requirements of federalism, contrary to Australia's legal history and a usurpation of the sovereignty of the Imperial Parliament. Such an approach is better understood when the principle of judicial deference, faithfully applied by Dixon as a central canon of legalism, is properly understood to be a doctrine of the common law rather than a constitutional imperative emanating from the sovereign legislature.[13] Ultimately, Dixon concluded that sovereignty under the Australian Constitution resides in the Crown. The practical import of this conclusion is not immediately apparent, because, as has recently been noted, "the concept of the Crown ... is deeply ambiguous."[14] However, it is clear that Dixon did not regard the Crown as ruling in the manner of an unfettered Austinian sovereign. He did not accept what has been described as:
one of the most extraordinary paradoxes that embarrasses the system of government both in the United Kingdom and Australia: the rule of law is regarded as a central tenet of the system and yet at its very centre – the Crown – the rule of law stops in some important respects.[15]
Such a result would have been an affront to "strict and complete legalism."[16] To avoid it, Dixon argued that the Crown was itself fettered by the common law, which formed the ultimate source of Australian constitutional authority.[17] Legal gaps did not exist because the symbolic sovereignty of the Crown was itself a product of the common law.
Given that, for better or worse, theoretical speculation has now found a place in Australian legal discourse, it is perhaps timely that Dixon's constitutional jurisprudence should be properly understood or, at least, properly contested.
The starting point for Dixon's theory of constitutional authority was an acknowledgment, consistent with the prevailing view of his times, that the Australian Constitution was a valid enactment of the Parliament at Westminster. In this respect he agreed with Sir John Latham that:
the work of the Conventions was accomplished when a Constitution was drafted. The draft had no legal effect or significance. It simply contained a proposal for the consideration of the people and of the legislature to which it was to be submitted. The popular vote approving the Constitution again had no legal effect. The Constitution obtained legal efficacy only by enactment as a Statute by the Parliament in Great Britain.[18]
Since federation it had been generally agreed that, whereas the Constitution had vested political sovereignty in the Australian people (or at least those with franchise), legal sovereignty remained with the British Parliament:[19] "[T]he will of the electors shall by regular and constitutional means always in the end assert itself as the predominant influence in the country. But this is a political, not a legal fact."[20] Dixon accepted the distinction that Dicey had drawn between legal and political sovereignty and, further, agreed that political sovereignty resided with the people. However, when it came to isolating legal sovereignty within the Australian legal system he did not adhere to the dominant view.
Traditionally, the doctrine of parliamentary sovereignty, though modified, was believed to have been imported to the dominions. The Imperial Parliament had intended to "establish a Constitution modelled on [its] own model, pregnant with the same spirit, and permeated with the principle of responsible government."[21] Thus, an enactment of a local legislature was in law considered to be absolutely authoritative. Sovereignty, however, was not complete. As reiterated by the Colonial Laws Validity Act,[22] local legislatures did not have powers to legislate in a manner inconsistent with the Parliament at Westminster. Thus, a dominion legislature, such as the Commonwealth Parliament:
could, of course, do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.[23]
Sovereignty under the Australian Constitution was subject to a further limitation. Federalism demanded that legislative power, though not curtailed in sum, needed to be apportioned among the various parliaments. Latham believed that:
the federal system prescribed by the Constitution distributes total power between the Commonwealth and the States, subject to constitutional guarantees and restrictions of power. In the absence of the latter, if a law is not within Commonwealth power it must be within State power.[24]
Despite these qualifications the doctrine of parliamentary sovereignty remained largely intact. It was so powerfully ingrained in constitutional thought at the beginning of the century that the Australian Constitution could not escape its influence. The local legislatures' "very derivation from the British Parliament gave them a kind of continuity with its organic traditions... After all, they had been made in its image."[25]
Dixon departed from the views of his predecessors by discarding the doctrine of parliamentary sovereignty under the Australian Constitution. The existence of legal limits upon the Commonwealth Parliament could not be explained away as mere qualifications to the doctrine of parliamentary sovereignty, but denied the doctrine any application in the Australian context. "After all," Dixon claimed:
the common law was the common law of England. It was not a law of nations. It developed no general doctrine that all legislatures by their very nature were supreme over the law. The doctrine of the supremacy of Parliament related to the Parliament of Westminster.[26]
In Dixon's view parliamentary sovereignty was incompatible with Australian constitutionalism in three respects. It was inconsistent with federalism, discordant with Australian legal history, and an affront to the sovereignty of the Parliament at Westminster. These will be discussed in turn.
First, Dixon believed that parliamentary sovereignty was inapplicable in a federal polity. Sovereignty of any one of the various parliaments in a federation would imperil the existence of the others. Therefore, none of the Australian legislatures could be entrusted with power over the law. Rather the High Court was to be elevated, to become the "keystone of the federal arch."[27] Despite his prominence as a primary exponent of parliamentary sovereignty, Dicey also acknowledged this. He argued that "whenever the founders of a federal government hold the maintenance of a federal system to be of primary importance, supreme legislative power cannot be safely vested in any ordinary legislature acting under the constitution."[28] Moreover, the functional necessities of maintaining a viable federal compact not only required a rejection of the doctrine of parliamentary sovereignty, but fostered a new understanding of Australian constitutionalism founded upon the supremacy of the law. According to Dixon:
until lawyers became accustomed to the workings of a federal system, the conception of parliamentary supremacy over the law dominated their thoughts. The rival conception of the supremacy of the law over the legislature is the foundation of federalism. Under that system, men quickly depart from the tacit assumption to which a unitary system is apt to lead that an Act of Parliament is from its very nature conclusive. They become accustomed to question the existence of power and to examine the legality of its exercise.[29]
Federalism, Dixon believed, exercised a profound influence over Australia's legal development. Expressed as an aphorism "federalism, lastly, means legalism".[30]
Second, Dixon believed that the supremacy of the law over the Constitution was an historical truth. "The anterior operation of the common law in Australia" was, he argued, "not just dogma of our legal system, an abstraction of our constitutional reasoning. It is a fact of our legal history."[31] Indeed, Windeyer's survey of colonial legal institutions existing prior to federation demonstrated that the rule of law had prospered (though undoubtedly not free from many of the prejudices contained therein) in Australia during the nineteenth century. Lawful administration was assumed and colonists laid claim:
to enjoy ancient rights and lawful liberties. It embodied a concept—implicit and not analysed, but basic—of common law as the ultimate foundation of British colonial institutions, a belief that not even Parliament could properly deprive British subjects anywhere of their birthright.[32]
It was a mistake to search for "our inheritance", the rule of law, in some statutory source, such as the Australian Courts Act[33] or the Australian Constitution. "The source", as Windeyer declared, "is the common law itself":
the Act ... fixes a date. It does not originate a doctrine... As soon as the original settlers had reached the colony, their indivisible and inescapable cargo of English law fell from their shoulders and attached itself to the soil on which they stood.[34]
Thus, the Constitution was founded in legality, "the Commonwealth was not born into a vacuum. It came into existence within a system of laws already established."[35]
Finally, the Constitution's status as an Act of the sovereign Parliament at Westminster also repudiated any claims of the Australian Parliament to sovereign authority. One of the few inflexibilities placed upon the Parliament at Westminster, Dixon believed, was that it could not delegate any of its power absolutely. To do so would imperil its exclusive authority over the law. Thus, even if the Imperial Parliament intended to delegate its absolute authority to the dominion legislatures, it was, paradoxically, incapable of doing so. In Attorney-General (NSW) v Trethowan[36] Dixon argued that:
the difficulty of the supreme Legislature lessening its own powers does not arise from the flexibility of the constitution. On the contrary, it may be said that it is precisely the point at which the flexibility of the British constitution ceases to be absolute. Because it rests upon the supremacy over the law, some changes which detract from that supremacy cannot be made by law effectively. The necessary limitations upon the flexibility of the constitution of New South Wales [and, presumably, that of the Commonwealth] result from a consideration of exactly an opposite character. They arise directly or indirectly from the sovereignty of the Imperial Parliament.[37]
The sovereign's continuing power over the dominions was powerfully illustrated, for Dixon, by the Colonial Laws Validity Act, 1865 (UK), "both in its enactment and in its content."[38] The Act invalidated any colonial law which was repugnant to English law.[39] Yet ironically the sovereignty of the Imperial Parliament was perhaps more forcefully apparent in the Statute of Westminster,[40] which attempted to establish "complete legal autonomy and complete legal equality" for the dominions:
it brought the promoters of the Statute face to face with the only limitation there is upon the omni-competence of the Imperial Parliament. The limitation necessarily arises from that Parliament's supremacy over that law. No law it makes can deprive it of supremacy over that law.[41]
Independence could not be achieved by the Statute because the "power supporting the Statute of Westminster was a continuing power."[42] In fact, independence of the sovereign was a lawful impossibility, achievable only by revolution. In the absence of such an event the Australian Constitution remained a lawful enactment of the Imperial Parliament, with the Australian Parliament properly constituted under the law, not sovereign over it.
The mode in which the Commonwealth came into being leaves no room for doubt or speculation as to the theoretical origin or legal foundation of the Commonwealth and the Constitution. The establishment of the Commonwealth is no 'act of State,' transcending the limits of legal inquiry; it is an act of law performed under the authority of an acknowledged political superior.[43]
For these various reasons Dixon believed that the Constitution derived its authority not from a political source (as convention held the British Constitution did), but from a legal source, namely the common law: "the Constitution depends upon the common law whose creature it is."[44] The Australian Constitution "did not proceed from an extra-legal transaction or an unexaminable source. It arose under the law, the law immemorially recognized."[45]
Though Dixon rarely addressed the issue of Australian sovereignty explicitly, he clearly did not regard sovereignty as residing in the Australian Parliament (as it appeared to reside in the British Parliament). Rather, according to Dixon, the Crown was "the legal expression of the sovereign state."[46] However, the Australian sovereign was not merely located in a different arm of government to its British counterpart, but performed a very different function. As noted by Dicey, the Crown's sovereign role in the Australian constitutional system took on a largely symbolic form:
Now from the necessity for placing ultimate legislative authority in some body outside the constitution a remarkable consequence ensues. Under a federal as under a unitarian system there exists a sovereign power, but the sovereign is in a federal state a despot hard to rouse. He is not, like the English Parliament, an ever-wakeful legislator, but a monarch who slumbers and sleeps.[47]
Assigning sovereign authority to a dormant ruler was a useful device for Dixon. The Crown was an adaptable sovereign. It has been noted that:
until recently the Crown has been the keystone in the triumphal arch of constitutional authority in Australia. For ... Dixon 'the supremacy of the Crown' ultimately made it possible to preserve a stable constitutional balance between 'the rival conceptions' of the supremacy of parliament on the one hand, and the supremacy of law on the other.[48]
Moreover, locating sovereignty in the Crown provided certainty in the legal structure thereby avoiding "merely metaphysical"[49] considerations about the law's ultimate source and eschewing "such speculations and their results."[50] Though providing a theoretically convenient approach to Australian constitutional authority, Dixon's sovereign occupied an awkward position under the Australian Constitution. Sovereignty of the Crown was theoretically and practically unconvincing: "a monarch who slumbers for years is like a monarch who does not exist."[51]
Yet, despite his professed reticence, on several occasions Dixon himself indulged in such speculation, from which a more coherent account of his constitutional jurisprudence may be drawn.[52] The Crown, for Dixon, was a symbol of legality; it was not a real sovereign at all. Dixon conceded this point while discussing the grundnorm. He began by quoting Salmon's famous positivist statement that all legal rules can be traced to a legally ultimate rule, and that the authority for that ultimate rule (grundnorm or rule of recognition) is historical or political.[53] However, Dixon offered an alternative view, that one may "find it satisfactory to describe the ultimate principle as part of the common law."[54] Therefore, the historically first constitution itself had a legal source, and Dixon claimed that source to be the common law. Stated in simple terms "the King should be subject to the law because the law made the King."[55] Yet a grundnorm with a legal source, is of course not a grundnorm at all. And a sovereign, such as the Australian Crown, ruling under the law was not a sovereign (at least in the manner in which sovereignty has been traditionally understood). Thus for Dixon there was no sovereign power under the Australian Constitution. The source of the Constitution's authority flowed from the common law itself.
Further, Dixon suggested, contrary to Dicey, that the power of the Parliament at Westminster was itself circumscribed by fundamental common law. Whilst that Parliament was always supreme, Dixon ultimately regarded that supremacy to be dependent upon the rule of law. This point has been restated more recently:
the limits on the power of a democratic majority to achieve its legislative will are ultimately to be found in the common law; and the common law is too subtle to tolerate the absurdity – even constitutional contradiction – of wholly unlimited legislative power.[56]
Thus the judiciary's acceptance of the authority of an Act of the Parliament at Westminster was not a political fact, but was a rule of common law.[57] Dixon argued that:
the British conception of the complete supremacy of Parliament developed under the common law; it forms part of the common law and, indeed, it may be considered as deriving its authority from the common law rather than as giving to the common law.[58]
Dixon's theory that the common law forms the ultimate constitutional foundation appeared to contradict the suggestion that sovereignty under the Australian Constitution resided in the Crown. However, when the Crown was properly understood to be merely a symbolic sovereign, it became apparent that for Dixon, constitutional authority did not rely upon a positivist source (historical or political), but relied instead upon a legal source, the common law. The Australian community was ruled not by a 'real' sovereign, but by "our abstract and ethereal sovereign, the law".[59]
From Dixon's belief that the Constitution was founded in the common law there emerged an interpretative technique, and indeed an entire judicial method: legalism. Having regarded Australia's constitutional authority as emerging from a legal, rather than political, source, Dixon's famous appeal to legalism appears quite unremarkable:
[C]lose adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in conflicts than a strict and complete legalism.[60]
Indeed, one may ask, how else was a legal document such as the Constitution to be interpreted, if not according to the law? However, legalism was not, at least in theory, a sterile or uncreative judicial method. As Dawson points out:
Sir Owen Dixon was not denying a law-making function to judges. He was doing no more than affirming that legal reasoning will provide the constraints within which that function may be exercised ... He was quick to recognise the inevitability of judge-made law, even if he preferred to call it the outcome of a 'formative process'.[61]
Yet, such judicial creativity required guidance, lest judges "be set adrift with neither moorings not chart."[62] Dixon believed that, not entirely unlike an ordinary statute, the Constitution should be interpreted according to deeply rooted common law values and principles, which provide "a cultural reservoir of assumptions about the legal and political system which the Constitution establishes."[63] Thus, legalism was not literalism. Legalism conceded that a judge's role was creative, and appropriated the values of the common law in guiding this process. "It is easy", wrote Dixon:
to treat the written instrument as a paramount consideration, unmindful of the part played by the general law, notwithstanding that it is the source of the legal conceptions that govern us in determining the effect of the written instrument.[64]
However, Dixon was rarely explicit about the legal values which he employed in determining constitutional cases. Only a few such principles were expressly relied upon.
Most powerful amongst the common law values which Dixon brought to bear upon his interpretative technique of legalism was judicial deference. Though, as discussed above, Dixon did not regard Parliament as sovereign over the law, it was the supreme law-making body. Parliament was equipped and competent to deal with complex and multifaceted policy issues. Moreover, responsible government was democratically legitimate, demonstrating "faith in the soundness of the opinion of the majority of the electors".[65] It has been explained that:
the parliament 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. The rule of law affirms parliament's supremacy while at the same time denying it sovereignty over the Constitution.[66]
Dixon accepted that the Court should defer to the legislature's purpose, declaring it to be "a proposition of the common law that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor."[67] For this reason, Dixon often emphasised the role of the constitutional text when engaged in interpretation: "A number of considerations exist ... First among them stands the very text of the Constitution."[68]
Dixon's faithful adherence to this common law doctrine dominated perceptions of legalism and thereby obscured it as an interpretative technique. Deference to the text led many commentators to regard legalism to be a mere extension of 'plain meaning' literalism: "[L]egalism ... is the projection of the judicial role as simply involving the interpretation and enforcement of limitations on government power set out in the text of the Constitution."[69] The literalist tradition in Australian constitutional interpretation exerted such a powerful influence over judicial method that "Engineers as the leading Australian constitutional authority on constitutional interpretation [was believed to have] provided a starting point for Sir Owen Dixon's influential ideas on this topic."[70]
However, Dixon, did not in fact embrace the majority decision in this important case as Dawson J discovered in Dixon's correspondence with Latham:
Whilst literalism is one way of restricting law making, it is not one that Dixon favoured. The Engineers' Case is the high-water mark of literalism in our constitutional history. But, as Dixon remarked privately, the Engineers' Case 'is one that I have always applied with restraint'. He successfully confined that decision by finding implications in the Constitution which modified any tendency towards an exclusively literal construction.[71]
Further, it was unnecessary for Dixon to overrule the Engineers[72] decision directly because, although a strictly literalist interpretation quickly dominated perceptions of the case, the judgment did not, in fact, advocate an exclusively literal approach. Dixon was entitled, according to the majority judgment, to interpret the Constitution "naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it".[73] Legalism did not contradict the Engineer's Case, though the "literalist hegemony"[74] built upon it did.
Thus, whilst faithful adherence to the text was a feature of legalism, and indeed perhaps even a dominant one, it was by no means the only consideration in constitutional interpretation. Legalism was, at least in theory, not so austere.
In Australian Communist Party v Commonwealth (Communist Party Case)[75] the common law constitution was put to devastating use. Dixon said:
[T]he Constitution ... is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.[76]
Ultimately it was the application of the rule of law which invalidated the Communist Party Dissolution Act 1950 (Cth) because the legislation "would have [had] the effect of making the conclusion of the legislature final and so the measure of the operation of its own power."[77] Allowing Parliament to determine the constitutional validity of its own legislation would have effectively elevated the Parliament above the law, and thus infringed the rule of law. The "source and stream" argument for Dixon became a conviction that Parliament could not dictate the nature of the common law constitution; only the Court could determine its content. As Dixon argued in Stenhouse v Coleman:[78]
[I]t is finally the court which must form and act upon a judgment upon the question whether the legislation, be it direct or be it subordinate, is a true exercise of the legislative power with respect to defence.[79]
The rule of law was "scarcely intelligible" without an independent and authoritative judiciary.[80] Therefore the separation of legislative and judicial power, of which Dixon was "our most ardent proponent",[81] was also to be considered a fundamental common law principle. It was indistinguishable from the rule of law itself.
The limits supplied by the common law in the Communist Party Case were analogous to the notions of natural law so famously drawn upon by Sir Edward Coke.[82] Dixon's commitment to fundamental common law principles demonstrated a realignment of Dicey's two preeminent constitutional principles, installing the rule of law over the doctrine of parliamentary sovereignty.
Yet, despite this somewhat startling result, Dixon did not, either on that occasion or elsewhere, elucidate those principles that formed the bed-rock of the common law constitution. Dixon's reluctance to do so is reflected in the hushed tones with which he addressed this delicate matter:
A rhetorical question may be enough to make this clear. Would it be within the capacity of a parliamentary draftsman to frame, for example, a provision replacing a deep-rooted legal doctrine with a new one?[83]
Thus, the nature of the rule of law and the fetters that it imposed upon legislative competence remained unarticulated.
Dixon's silence presumably indicates that he construed such fetters as narrowly as possible. Except in extraordinary cases the common law constitution therefore seemed to impose no greater restrictions upon the legislature than mere manner and form requirements. "Limitations upon the powers of colonial legislatures always existed, [but were] unimportant",[84] because "legislative power, at any rate when expressed and authenticated in the manner required by the law for the time being in force, extended over the whole field of law."[85] Dixon also noted that: "We did not adopt the Bill of Rights or transcribe the Fourteenth Amendment. It is, as it appears to me, a striking difference. It goes deep in legal thinking."[86]
Thus, despite elevating the Crown to the position of symbolic sovereign, as a device through which to install the rule of law over the sovereignty of Parliament, in practice Dixon's common law constitution imposed virtually no caveats on legislative power. Under Dixon's guardianship the common law constitution existed only as a skeletal constitutional structure, its substantive doctrines remaining undeveloped.
There can be no certainty that the recent statement by Gleeson CJ, Gummow and Hayne JJ, that sovereignty resides in the Crown, will herald a return to a form of Constitutionalism founded upon the common law as envisaged by Dixon. Nowhere do their Honours expressly endorse this theory.[87] However, some support for this proposition may be gleaned from the judgments and extra-curial writings of the legalist members of the Court.
First, the Lange[88] decision indicates a return to the common law to resolve constitutional disputes. In that case, rather than rely upon the freedom of political communication implied in the Constitution, the common law doctrine of qualified privilege was extended as a common law defence. The Court signalled the end of citizenship rights; personal rights, where constitutionally protected, would be derived from statute or the common law. Moreover, the Court indicated that "the factors which affect the development of the common law equally affect the scope of the freedom which is constitutionally required."[89] Legal symmetry may again be emerging between the historical development of the common law and our understanding of the Constitution.
Second, in Kartinyeri v Commonwealth,[90] whilst considering whether the Hindmarsh Island Bridge Act 1997 (Cth) constituted a manifest abuse of legislative power, Gummow and Hayne JJ tantalisingly left open the possibility that the common law might impose legislative constraints:
three further points may briefly be made. First, as a matter of construction, a legislative intention to interfere with fundamental common law rights, freedoms and immunities must be 'clearly manifested by unmistakable and unambiguous language'. Secondly, the doctrine of Marbury v Madison ensures that courts exercising the judicial power of the Commonwealth determine whether the legislature and the executive act within their constitutional powers. Thirdly, the occasion has yet to arise for consideration of all that may follow from Dixon J's statement that the Constitution 'is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may be fairly said that the rule of law forms an assumption.'[91]
The import of Dixon J's words is exemplified in juxtaposition to the more conventional assertions regarding statutory interpretation and judicial review. When the appropriate occasion does arise Gummow and Hayne JJ might begin the task of elucidating the content of the common law constitution: Dixon's unfinished project.[92]
Finally, support for the possibility that the vesting of sovereignty in the Crown may reflect an adherence to Dixon's constitutional jurisprudence is to be found in the adoption of the phrase "constitutional monarch" in Sue v Hill.[93] Presumably a constitutional monarch is not a sovereign at large, but a sovereign constrained by the rule of law. In fact it is said by the judges that:
The sovereign, being a constitutional monarch, acts, as the term indicates, in accordance with the limitations developed over time as part of what is identified as the British Constitution.[94]
Recently Gummow J has written that:
to begin with a constitutional text against which legislative or executive action is measured is to proceed from the general to the particular. In that process, larger questions arise concerning the nature of law and of government under law. They cannot readily be avoided by a single minded adherence to tenets of legal positivism and of parliamentary sovereignty and supremacy.[95]
These sentiments also echo the approach favoured by Dixon.
Yet, assuming that Gleeson CJ, Gummow and Hayne JJ have indeed adopted a constitutional schema akin to Dixon's, the reinstatement of the sovereign Crown may sit somewhat uncomfortably with republicans.
A competing conception of Australian sovereignty would appear to contradict the authority of the Crown. The ascendancy of the Australian people as constitutional sovereign has been considered at length by many constitutional commentators. It has been said that the passage of the Australia Acts,[96] coinciding with Sir Anthony Mason's appointment as Chief Justice, effectuated Australia's legal independence. This event thereby wiped the constitutional slate clean and allowed the Mason Court to develop a new theory of constitutional sovereignty: "the sundering impact of the Australia Acts [was] a potent force for the articulation of a new, comprehensive conception of what the Australian Constitution is, and what a court is doing when it interprets it."[97]
For Mason the Constitution was not an Imperial Statute deriving its strength from the common law, but a national compact deriving its authority from those whom it purported to govern, the Australian people. 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."[98] Such an event had momentous consequences for Australian constitutional law:
The Australia Acts 1986 ... in terminating the power of the British Parliament to legislate for Australia, created an apparent void in our constitutional theory which, having been seized upon, seems at last to have allowed the Australian people to claim their due... Dicey's two sovereignties appear to be coalescing as they did in the United States more than two centuries ago... The Australian people are constituted the owners, not merely the beneficiaries, of our legal system of government.[99]
These developments have, without overstatement, been described as revolutionary.[100] At its highest the vesting of sovereignty in the people may be seen to have marked the end of an era of parliamentary sovereignty, based upon Diceyan theory, and to have heralded a new era of popular sovereignty based upon Lockean ideals.[101]
At first glance Dixon and Mason may appear to have vested ultimate legal authority in two incongruous sovereigns: Mason in the republican people, and Dixon in the monarchical Crown. However, their respective constitutional outlooks actually bear a remarkable resemblance. First, as has already been noted, each of them discarded the doctrine of parliamentary sovereignty.
Second, and somewhat ironically, it was the republican Mason Court that took up the unfinished task, begun by Dixon, of giving the common law constitution content. Mason said of Dixon's jurisprudence that:
Sir Owen Dixon's address entitled 'The Common Law as an Ultimate Constitutional Foundation' might suggest that he had in mind possible limitations on legislation arising from common law principles. But ... it is impossible to extract support from Sir Owen Dixon for the implication of general common law rights in the Australian Constitution.[102]
The Mason Court took tentative steps to develop some such common law limitations, under the banner of Chapter III jurisprudence: bills of attainder and retrospective criminal legislation were said to be invalid;[103] a right was said to exist against punitive detention in the absence of a trial;[104] the right to a fair trial was declared;[105] as was the right to equality before the law.[106] Toohey J controversially suggested that:
the courts would over time articulate the content of the limits on power arising from fundamental common law liberties. It would then be a matter for the Australian people whether they wished to amend their Constitution to modify those limits. In that sense, an implied 'bill of rights' might be constructed.[107]
It was not always entirely clear whether these rights were "citizenship rights" derived from the people's written compact, or whether they were rights independently enforceable via the common law itself.
Third, and most importantly, both Dixon and Mason vested ultimate constitutional authority in symbolic sovereigns in order to ensure the integrity of the rule of law. To the ire of "strong republicans" the vesting of sovereignty in the people did not signify the existence of a "power existing in the people at large, at any time, for any cause, or for no cause, but their own sovereign pleasure, to alter or annihilate both the mode and essence of any former government and adopt a new one in its stead."[108] Radical suggestions, such as the introduction of an elected judiciary,[109] were not contemplated and the High Court's adoption of community values was said to be "impressionistic."[110] Rather, the people were regarded transcendentally, "in a remote and abstracted sense as providing the higher law justification for the establishment of a constitutional system by which the people ... were to be governed."[111] The divide between republicans and monarchists is very narrow indeed. Both have succumbed to the notion of higher law; it is only the source of that law that differs.
The sovereignty of the people and sovereignty of the Crown coalesce in Lange. In that decision it was said that:
Of necessity, the common law must conform with the Constitution. The development of the common law in Australia cannot run counter to constitutional imperatives. The common law and the requirements of the Constitution cannot be at odds ... In any particular case, the question whether a publication of defamatory matter is protected by the Constitution or is within a common law exception to actionable defamation yields the same answer.[112]
Upon a republican reading this passage may suggests that the people's compact dominates the development of the common law. Yet, if this be the case then the common law is ultimately subject to the higher law emanating from the symbolic people. Alternatively, on a legalist interpretation the statement that the common law must conform with the Constitution is merely an acknowledgment that the Constitution is itself derived from the common law: they cannot be at odds because they are moulded from the same stuff.
Therefore, regardless of whether sovereignty is to be vested in the people or in the Crown the revolution has been secured. Parliamentary sovereignty has not been simply replaced by another absolute Austinian rule of recognition.[113] The sovereign people and the Crown are largely interchangeable icons; ornaments to constitutionalism.
It is as yet unclear what implications may be drawn from the recent vesting of legal sovereignty in the Crown. Yet it is this author's contention that it should herald a return to the constitutional jurisprudence developed, although somewhat obliquely, by Dixon. Whilst Dixon's Crown and Mason's people share many attributes, this author believes that the development of the common law constitution is to be preferred over the pursuit of a republican Constitution because the vesting of sovereignty in the people is apt to create confusion. Though the people were not invoked in this sense by Mason, "republicanism brings us uncomfortably close to Rousseau's General Will... and the tyranny of the majority":[114]
If the Constitution derives its authority and legitimacy from the will of the people then it represents a radical constitutive formulation of the people's coming together... It may well be that as an expression of Lockean liberal constitutionalism the Constitution secures natural rights, limited government, citizenship and representative government. However, the sovereignty of the people also opens up a world of fundamentally different political visions, from Hobbes' sovereign to Rousseau's general will, from communitarianism to republicanism.[115]
The vesting of sovereignty in the Crown on the other hand tends to emphasise the mere symbolism of that posting. This is especially so in Australia where we are fortunate enough to have an absentee sovereign.
Though, for now, the revolution appears to have been secured (it is now difficult to find an Australian constitutional lawyer who still adheres to the doctrine of parliamentary sovereignty) it will only be complete when it is recognised that the very notion of sovereignty, traditionally understood, is an affront to the rule of law and has no place in our constitution at all.
[*] BA (Hons), LLB (Hons) (Adel). I am indebted to Chief Justice Doyle of the Supreme Court of South Australia, and Professor Michael Detmold and Dr John Williams of the University of Adelaide for their comments and criticisms regarding earlier drafts of this article. I would also like to thank Belinda Baker, Macgregor Duncan, Geraldine Sladden, Pierina Reina and Noel Wait for their help.
[1] Ferrer v Arden [1572] EngR 137; (1599) 6 Co Rep 7a; (1599) 77 ER 263.
[2] For example, AM Gleeson, "Judicial Legitimacy" (2000) 20 Aust Bar Rev 4; WMC Gummow, Change and Continuity: Statute, Equity and Federalism (1999) at ixx.
[3] In this paper I adopt the meaning of sovereignty offered by McHugh J in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 237: "ultimate sovereignty resides in the body which made and can amend the Constitution".
[4] [1999] HCA 30; (1999) 163 ALR 648.
[5] Ibid at [70].
[6] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 138 per Mason CJ; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 71 per Deane and Toohey JJ; McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 230 per McHugh J.
[7] [1997] HCA 25; (1997) 189 CLR 520.
[8] H Wright, "Sovereignty of the People – The New Constitutional Grundnorm?" (1998) 26 F L Rev 165 at 175-176.
[9] [1997] HCA 25; (1997) 189 CLR 520 at 566; recently reaffirmed in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 172 ALR 625; at [34] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ and at [142] per Kirby J.
[10] This appears to have been the approach of many commentators, including: A Stone, "Freedom of Political Communication, the Constitution and the Common Law" (1998) 26 F L Rev 219; N Aroney, "The Structure of Constitutional Revolutions: Are the Lange, Levy and Kruger Cases a Return to Normal Science?" [1998] UNSWLawJl 54; (1998) 21 UNSWLJ 645 at 655-656; M Jones, "Free Speech Revisited: The Implications of Lange & Levy" [1997] AUJlHRights 24; (1997) 4 AJHR 188 at 200.
[11] O Dixon, "The Statute of Westminster, 1931" in Jesting Pilate (1965) 82 at 82.
[12] Ibid at 99.
[13] Cf J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (1999) and G Winterton, "Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?" in C Sampford and K Preston (eds), Interpreting Constitutions (1996) 121 at 136.
[14] T Cornford, "Legal Remedies Against the Crown and its Officers" in M Suskin and S Payne (eds), The Nature of the Crown (1999) 233 at 233.
[15] N Seddon, "The Crown" (2000) 28 F L Rev 245 at 256.
[16] O Dixon, "Upon Taking the Oath of Office as Chief Justice" in Jesting Pilate (1965) 245 at 247.
[17] O Dixon, "The Common Law as an Ultimate Constitutional Foundation" in Jesting Pilate (1965) 203 at 205.
[18] J Latham, "Interpretation of the Constitution" in R Else-Mitchell (ed), Essays on the Australian Constitution (1961) 1 at 4.
[19] J Quick and R Garran, Annotated Constitution of the Australian Commonwealth (1901) at 285.
[20] AV Dicey, Introduction to the Study of the Law of the Constitution (10th ed 1959) at 73.
[21] Speech of Lord Haldane in the House of Commons delivered on the motion for leave to introduce the bill for the Australian Constitution Act, quoted in the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 147, per Knox CJ, Isaacs, Rich and Starke JJ.
[22] 1865 (UK), s 2.
[23] R v Burah (1878) 3 App Cas 889 at 904, per Lord Selborne.
[24] L Zines, The High Court and the Constitution (4th ed 1997) at 139.
[25] T Blackshield and G Williams, Australian Constitutional Law and Theory: Commentary and Materials (2nd ed 1998) at 131.
[26] O Dixon, "Sources of Legal Authority" in Jesting Pilate (1965) 198 at 200.
[27] A Deakin, quoted in J Bennett, Keystone of the Federal Arch: A Historical Memoir of the High Court of Australia to 1980 (1980) at iii.
[28] AV Dicey above n 20 at 147-148.
[29] O Dixon, "The Law and the Constitution" in Jesting Pilate (1965) 38 at 50.
[30] AV Dicey above n 20 at 175.
[31] O Dixon above n 26 at 199.
[32] V Windeyer, "‘A Birthright and Inheritance’ – Establishment of the Rule of Law in Australia" [1962] UTasLawRw 1; (1962) 1 U Tas LR 635 at 653. The notion of the common law as a birthright was first expounded by W Blackstone in Commentaries on the Laws of England: Volume I, Of the Rights of Persons (5th ed 1773) at 107.
[33] 9 Geo IV, c 83, 1828 (UK).
[34] V Windeyer above n 32 at 636.
[35] Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508 at 521.
[37] Ibid at 427 per Dixon J.
[38] O Dixon above n 29 at 47.
[39] Colonial Laws Validity Act, 1865 (UK), s 2.
[40] 1931 (UK).
[41] O Dixon above n 11 at 86.
[42] M Detmold, The Australian Commonwealth: A Fundamental Analysis of its Constitution (1985) at 7-8.
[43] H Moore, The Constitution of the Commonwealth of Australia (2nd ed 1910) at 66.
[44] O Dixon above n 29 at 42.
[45] O Dixon above n 26 at 200.
[46] O Dixon above n 29 at 59.
[47] AV Dicey above n 20 at 149.
[48] A Fraser, "False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution" [1994] SydLawRw 18; (1994) 16 Syd LR 228 at 228.
[49] O Dixon, "The Statute of Westminster, 1931" in Jesting Pilate (1965) at 82.
[50] Ibid at 99.
[51] AV Dicey above n 20 at 149.
[52] O Dixon, "The Common Law as an Ultimate Constitutional Foundation", "Sources of Legal Authority" and "The Law and the Constitution" in Jesting Pilate (1965).
[53] J Salmond, Jurisprudence (12th ed 1966) at 111-112.
[54] O Dixon above n 17 at 207.
[55] Ibid at 204, quoting H Bracton, On the Laws and Customs of England: Volume II (1968) at 304.
[56] TRS Allan "The Common Law as Constitution; Fundamental Rights and First Principles" in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) at 156.
[57] O Dixon above n 29 at 43.
[58] O Dixon above n 26 at 199.
[59] R Dworkin, Law’s Empire (1986) at viii. For a comparison of the jurisprudence of Dixon and Dworkin see: D Dawson, Do Judges Make Law? Too Much? (unpublished paper, copy held in the law library at the University of Adelaide) at 5-6.
[60] O Dixon above n 16 at 247.
[61] D Dawson above n 59 at 4.
[62] O Dixon, "Concerning Judicial Method" in Jesting Pilate (1965) 152 at 165.
[63] T Blackshield, "The Implied Freedom of Communication" in G Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) 232 at 260.
[64] O Dixon above n 17 at 205.
[65] O Dixon, "Government Under the American Constitution" in Jesting Pilate (1965) 106 at 106.
[66] K Mason, "The Rule of Law" in P Finn (ed), Essays on Law and Government, Volume I: Principles and Values (1996) 114 at 123. Though Mason is not here referring to Dixon, the distinction that he draws is, I believe, pertinent to Dixon’s method.
[67] O Dixon above n 17 at 206.
[68] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 271-272 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.
[69] S Gageler, "Foundations of Australian Federalism and the Role of Judicial Review" (1987) 17 F L Rev 162 at 175; A Mason, "Future Directions in Australian Law" [1987] MonashULawRw 6; (1987) 13 Monash LR 149 at 158; K Booker and A Glass, "What Makes the Engineers Case a Classic?" in M Coper and G Williams (eds), How Many Cheers for Engineers? (1997) 45 at 52; G Williams, "The Impact of Engineers: Engineers and Implied Rights" in M Coper and G Williams (eds), How Many Cheers for Engineers? (1997) 105 at 107; L Zines above n 24 at 425.
[70] K Booker and A Glass above n 69 at 57.
[71] D Dawson above n 59 at 4 – 5, quoting from one of Dixon’s letters to Latham.
[72] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.
[73] Ibid at 152 per Knox CJ, Isaacs, Rich and Starke JJ.
[74] G Craven, "The Crisis of Constitutional Literalism in Australia" in HP Lee and G Winterton (eds), Australian Constitutional Perspectives (1992) 1 at 6. The debate as to the ‘true’ meaning of the Engineers’ Case is long-standing. For instance, two early contributions include a literalist interpretation by W Wynns, Legislative and Executive Power (1936) and a legalist analysis by A Garran, "Development of the Constitution" (1924) 40 LQR 202.
[75] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1.
[76] Ibid at 193 per Dixon J.
[77] Ibid at 193 per Dixon J.
[78] Stenhouse v Coleman [1944] HCA 36; (1944) 69 CLR 457.
[79] Ibid at 470 per Dixon J.
[80] L Zines above n 24 at 239.
[81] G Winterton, "The Separation of Judicial Power as an Implied Bill of Rights" in G Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) 185 at 187. Although in both R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, and R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254, Dixon CJ derived the separation of powers doctrine from the text of the Constitution, his comments in Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 193 clearly indicate that he regarded the doctrine to be a common law one which had been inscribed into the Constitution.
[82] For example, Bonham’s Case [1572] EngR 106; (1610) 8 Co Rep 107a; 77 ER 646.
[83] O Dixon above n 17 at 205.
[84] Ibid at 206.
[85] O Dixon above n 29 at 41.
[86] O Dixon above n 62 at 153.
[87] In the case of Trawl Industries v Effem Foods [1992] FCA 272; (1992) 36 FCR 406 at 411, Gummow J suggested that Dixon’s constitutionalism might provide a justification for applying various common law estoppels within federal jurisdiction.
[88] [1997] HCA 25; (1997) 189 CLR 520.
[89] Ibid at 565.
[90] [1998] HCA 22; (1998) 195 CLR 337.
[91] Ibid at [89] per Gummow and Hayne JJ.
[92] Interestingly P Keyzer has recently suggested that the right to natural justice might soon emerge, not as a citizenship right, but from the common law of the Constitution: P Keyzer "Pfeiffer, Lange, the common law of the Constitution and the Constitutional right to natural justice" (2000) 20 Aust Bar Rev 87.
[93] [1998] HCA 30; (1999) 163 ALR 648.
[94] Ibid at [70] per Gleeson CJ, Gummow & Hayne JJ.
[95] WMC Gummow above n 2 at xx.
[96] 1986 (Cth) and 1986 (UK).
[97] G Craven above n 74 at 13.
[98] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 138 per Mason CJ; McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 230 per McHugh J, saying "the political and legal sovereignty of Australia now resides in the people of Australia".
[99] P Finn, "A Sovereign People, A Public Trust" in P Finn (ed), Essays on Law and Government (1995) 1 at 4.
[100] Cf G Winterton, "Popular Sovereignty and Constitutional Continuity" (1998) 26 F L Rev 1.
[101] H Wright above n 8 at 167.
[102] A Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy" in C Sampford and K Preston, Interpreting Constitutions: Theories, Principles and Institutions (1996) 13 at 28.
[103] Polyukovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 609 and 611 per Deane J and at 613 per Gaudron J.
[104] Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1 at 27-29 per Brennan, Deane and Dawson JJ. Gaudron J agreed at 55, though she did not regard all detention to be punitive in nature.
[105] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 326 and 330 per Deane J.
[106] Leeth v Commonwealth (1992) 174 CLR 455 at 502 per Gaudron J.
[107] J Toohey, "A Government of Laws, and Not of Men?" (1993) 4 PLR 158 at 170.
[108] G Wood, The Creation of the American Republic, 1776 – 1787 (1969) at 362.
[109] A Fraser, "Strong Republicanism and a Citizen’s Constitution" in W Hudson and D Carter (eds), The Republicanism Debate (1993) at 58-59.
[110] J Doyle, "Implications of Judicial Law-Making" in C Saunders (ed), Courts of Final Jurisdiction (1996) 84 at 96.
[111] S Gageler above n 69 at 173.
[112] [1997] HCA 25; (1997) 189 CLR 520 at 567 per the Court.
[113] Cf M Detmold "Provocation to Murder: Sovereignty and Multiculture" [1997] SydLawRw 1; (1997) 19 Syd LR 5 at 31, fn 91.
[114] L Kerber, "Making Republicanism Useful" (1988) 97 Yale LJ 1663 at 1665.
[115] H Patapan, "Politics of Interpretation" [2000] SydLawRw 11; (2000) 22 Syd LR 247 at 271.
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