SOVEREIGNTY OF THE PEOPLE - THE NEW CONSTITUTIONAL GRUNDNORM? Harley G A Wright* [I]t was natural once the conflict with Britain reached the stage where independence was the only real alternative to submission that the men of the Revolution should tum to constitution making. 1 INTRODUCTION After 1992, "the year that was"2 in constitutional law, it appeared to many that the High Court had adopted a new grundnorm of constitutional interRretation: "parliamentary sovereignty" was replaced with "sovereignty of the people".3 This change was most marked in the "free speech" cases4 which appeared to rely upon a concept that lawyers in the Westminster tradition had long been proud to do without, namely, individual rights. While some celebrated with promises of a new sense of citizenship and a revitalised democratic tradition,S others saw these promises as empty and warned that judicial implication of rights threatened positivist legal values and judicial independence. 6 1 2 3 4 5 6 BA (Hons) / LLB (UNSW). I would like to thank Sir Anthony Mason and Professor George Winterton for giving me their views on "sovereignty of the people". I would also like to thank those who provided helpful comments on an earlier draft of this article: the anonymous referee, Professor Michael Chesterman, Professor Conal Condren, Professor Robert Post, Dr Helen Pringle, Alida Stanley and Professor George Winterton. B Schwartz, The Great Rights ofMankind: A History of the American Bill of Rig~ts (1992) at 65. B Fitzgerald, "Proportionality and Australian Constitutionalism" [1993] UTasLawRw 16; (1993) 12 U Tas LR 263 at 276. D Smallbone, "Recent Suggestions of an Implied 'Bill of Rights' in the Constitution, Considered as Part of a General Trend in Constitutional Interpretation" (1993) 21 F L Rev 254 at 258; L McDonald, "The Denizens of Democracy: The High Court and the 'Free Speech' Cases" (1994) 5 PLR 160 at 182; A R Blackshield, "The Implied Freedom of Communication" in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 232 at 242; M Detmold, "The New Constitutional Law" [1994] SydLawRw 18; (1994) 16 Syd LR 228. Australian Capital Television Ply Ltd v Commonwealth (ACTV) [1992] HCA 45; (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1. For example, L McDonald, above n 3, A R Blackshield, above n 3 and M Detmold, above n3. N Douglas, "Freedom of Expression Under the Australian Constitution" (1993) 16 UNSWL/ 315; T Campbell, "Democracy, Human Rights, and Positive Law" [1994] SydLawRw 16; (1994) 16 Syd LR 195; A 166 Federal Law Review Volume 26 Although recent decisions have not favoured an expansive interpretation of the early free speech cases, discerning a clear trend in this area is difficult. On the one hand, the McGinty7 decision rejected the view that a representative democracy required numerical equality in Commonwealth electoral divisions. McGinty has been interpreted as "a turning point in the High Court's approach to implied freedoms"8 and as "a reaffirmation of orthodox principles of Constitutional interpretation".9 Yet, on the other hand, the unanimous judgment in Lange10 refused to overrule the most radical of the free speech decisions, Theophanous. 11 According to McHugh J, Lange means "[i]t is not open to doubt that the Constitution protects the freedom of 'the people of the Commonwealth' ... to communicate with each other..." and that "the scope of that freedom is at least as great as that recognised in the two earlier cases [ACTV and Theophanous] ".12 Arguments based upon popular sovereignty have been most directly raised in Levy v State of Victoria. In that case, Victorian regulations preventing protesters from being in the vicinity where duck shooting was taking place were challenged as contrary to an implied freedom of political discourse. In presenting the first of three submissions for the plaintiff, Mr Castan QC argued that "the ultimate sovereignty of the people of Victoria ... limits legislative power within the State".13 However, the potential of the Levy case to resolve many of the uncertainties surrounding popular sovereignty was not realised; the facts were apparently not strong enough to compel the Court's resolution of these issues. 14 As an interpretive norm of the Constitution, "sovereignty of the people" has ramifications beyond the fate of decisions immediately before the Court. It raises broad philosophical, historical and political issues concerning the relationship of the judiciary to the legislative branch of government. This article examines "sovereignty of the people", investigating whether it is, or should be, a guiding norm in the interpretation of the Constitution. The first part of this article surveys the theoretical and philosophical context in which debates surrounding the influence of popular sovereignty are conducted. The second part examines the use of "popular sovereignty" in Australian constitutional jurisprudence, from the early dissenting judgments of Murphy J to the majorities in the "free speech" cases of the 1990s. The third part of the article assesses, against the background of Australia's constitutional and political history, whether "sovereignty of the people" should be the new grundnorm of Australian law. 7 8 9 10 11 12 13 14 Fraser, "False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution" [1994] SydLawRw 17; (1994) 16 Syd LR 213. McGinty v Western Australia (1996) 186 CLR 140. G Williams, "Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform" [1996] MelbULawRw 6; (1996) 20 MULR 848 at 860. D Ball, "The Lion that Squeaked: Representative Government and The High Court" [1996] SydLawRw 19; (1996) 18 Syd LR 372 at 379. Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96. Theophanous v The Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104. Levy v Victoria [1997] HCA 31; (1997) 146 ALR 248 at 273 footnote 105. Levy, transcript of proceedings, High Court, 6 August 1996 at 5. Levy is discussed further in Part II of this article. 1998 Sovereignty of the People - The New Constitutional Grundnorm 167 PART I - SOVEREIGNTY OF THE PARLIAMENT OR SOVEREIGNTY OF THE PEOPLE - THE THEORETICAL FRAMEWORK Rooted in the basic norm, ultimately, is the normative import of all the material facts constituting the legal system.1S A shift in the basic norm (the grundnorm) of constitutional interpretation compels examination, in both the old grundnorm and the new, of the fundamental assumptions made about the people, the political process, the judiciary and the relationships between them. To focus such a potentially broad discussion, it is necessary to analyse the points at which the theoretical structures underlying each grundnorm compete and clash. The familiarity of many of these arguments is perhaps explained by their thematic nature; the issues sketched below recur in different guises throughout constitutional discourse and lie at the bottom of many constitutional disagreements. At its most basic, the conflict between "sovereignty of the people u and uparliamentary sovereigntyu can be viewed as a conflict between natural law and positivism.16 Locke and popular sovereignty Starting with the premise that all are equal before God, John Locke reasoned that the basis of political authority must be sourced in the consent of the govemed.17 Locke drew upon natural law to claim that there are some rights that lie beyond the power of individual consent. This Freedom from Absolute, Arbitrary Power, is so necessary to, and closely joyned with a Man's Preservation, that he cannot part with it, but by what forfeits his Preservation and Life together. For a Man, not haVing the Power of his own Life, cannot, by Compact, or his own Consent, enslave himself to anyone, nor put himself under the Absolute, Arbitrary Power of another, to take away his Life, when he pleases. No body can give more Power than he has himself; and he that cannot take away his own Life, cannot give another power over it.18 If the rights of life and liberty are beyond the power of the individual, it follows that for Locke it is impossible for an individual, or a community made up of individuals, to give these rights to anybody, including the government. The impossibility of giving 15 16 17 18 H Kelsen, An Introduction to the Problems of Legal Theory, (B Paulson and S Paulson translation 1992) at 58 (§ 29). Lord Cooke has suggested that implications from the Constitution in cases such as ACTV are based on natural law concepti$: "The Dream of an International Common Law" in C Saunders (ed), Courts of Final Jurisdiction (1996) 138 at 139. T R S Allan has portrayed parliamentary sovereignty as a pillar of legal positivism: "The Limits of Parliamentary Sovereignty" [1985] Public Law 614 at 614. Note that this conflict between natural law and positivism is most sharply focussed if a "Lockean" view (described below) of "sovereignty of the people" is taken. J Locke, Two Treatises of Government, P Laslett (ed), (1988) at 330-331: "Men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent. The only way whereby anyone devests himself of his Natural Liberty, and puts on the bonds of Civil Society is by agreeing with other Men to joyn and unite into a Community, for their comfortable, safe, and peaceable living one amongst another, in a secure Enjoyment of their Properties, and a greater Security against any that are not of it". Ibid at 284. 168 Federal Law Review Volume 26 plenary power to any of the three arms of government means that there are some areas that lie beyond the power of governments. The government, therefore, is properly regarded as a "trustee" rather than the embodiment of the people's power.19 Published against the background of the English Revolution of 1688, Locke's Two Treatises of Government was inevitably interpreted as a justification for the rise of the Parliament over the Crown. 20 Locke's refutation of Sir Robert Filmer's "divine right" theory of monarchical power linked the ideas of political equality and consent of the governed with republicanism, a link that was strengthened by the American War of Independence and its underlying Whig philosophy. The ideas central to Locke's political theory, along with other theorists such as Montesquieu,21 were seized upon and developed by the framers of the United States Constitution. Political equality, consent of the governed, government as a trustee of the people, and republicanism are grounding themes in the works of Thomas Jefferson, James Madison, and James Wilson: We hold these truths to be sacred and undeniable; that all men are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, and liberty, and the pursuit of happiness. 22 Viewed through this lens, a constitution becomes not only the social compact itself but also the instrument through which the people delegate (part of) their sovereign power to the branches of government. For this reason the relationship of the legislature with the people is best regarded as a fiduciary one, a trust that is scrutinised and guaranteed by the judiciary. Although some in the bundle of ideas that make up this constitutionalism are too influenced by the success of the American Constitution to be directly attributed to Locke (notably the large role for the judiciary), I will refer to this body of ideas as the "Lockean" approach. Dicey and parliamentary sovereignty The centrepiece of Dicey's theory of judicial review, detailed in his Introduction to the Study of the Law of the Constitution, is the plenary power of the Parliament, that is, parliamentary sovereignty. Dicey made a fundamental distinction between the people's political sovereignty and the Parliament's legal sovereignty.23 According to Dicey's vision, legal sovereignty is not attached to the "people" but rather to their law-making body, the Parliament. This location of legal sovereignty has profound implications for the relationships between the people, the legislature and the judiciary. First, Dicey expreSSly rejected the view, engendered by an emphasis on the legal "sovereignty of the people", that the Parliament was in any way a trustee for the 19 20 21 22 23 For an application of this concept in an Australian context: see P Finn, "A Sovereign People, A Public Trust" in P Finn (ed), Essays on Law and Government (1995) 1. As much of the Two Treatises of Government was written before the 1688 Revolution, it is better regarded as a "demand for a revolution to be brought about, not the rationalization of a revolution in need of defence": J Locke, above n 17 at 47. B Schwartz, The Great Rights ofMankind: A History of the American Bill of Rights (1992) at 70. Thomas Jefferson, Declaration of Independence (original draft). A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) at 72-74. 1998 Sovereignty of the People - The New Constitutional Grundnorm 169 people. Austin's suggestion that "members of the Commons' house are merely trustees for the body by which they are elected"24 was emphatically rejected. Nothing is more certain than that no English judge ever conceded, or, under the present constitution, can concede, that Parliament is in an~ legal sense a "trustee" for the electors. Of such a feigned "trust" the courts know nothing. 5 Secondly, in contrast to the Lockean view that judges are empowered to find legislation invalid because of a breach of an individual's inalienable rights, for Dicey the role of the judges was limited to applying the laws enacted by Parliament. At most, judges have an interpretive role. When attempting to construe legislation, judges "will presume that Parliament did not intend to violate the ordinary rules of morality, or the principles of internationallaw".26 However, "if the legislation is clear, and though the judge considers it to be unjust or even oppressive, it is not for him to substitute his opinion for that of the elected representatives assembled in Parliament."27 The contrast between these theoretical models shows that, in legal theory at least, the location of sovereignty (or in Kelsen's terms, the grundnorm) makes a fundamental difference to the way in which the constitution is viewed and interpreted. However, it would be a mistake to think that a particular legal system is theoretically pure, or operates on one model to the exclusion of the other. The real world is more complex than these schematic diagrams of legal theory will admit. The next part of this article places the Lockean approach in an Australian context, with a view to identifying the prominent features of popular sovereignty. PART II DECISIONS SOVEREIGNTY OF THE PEOPLE IN AUSTRALIAN [G]ovemment of the people, by the people, and for the people, shall not perish from the earth. 28 [A]l1 powers of government ultimately belong to, and are derived from, the govemed. 29 It was Lionel Murphy who first used sovereignty of the people to justify the intervention of the judiciary to protect the rights of individuals against the encroachments of Parliament. Strong themes of republicanism and popular sovereignty ran through Murphy }'S jurisprudence. However his practical application of these principles, in short judgments designed to be comprehensible to the ordinary 24 25 26 27 28 J Austin, Jurisprudence (1879) 4th ed, vol I at 253, cited by Dicey, ibid at 74-5. A V Dicey, above n 23 at 75. Ibid at 62-63. Cf a Dixon, Jesting Pilate (1965) 203 at 206. Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 406 per Kirby P. 29 A Lincoln, "Address at the Dedication of the National Cemetery at Gettysburg" November 19, 1863. See also McCulloch v Maryland [1819] USSC 5; 4 Wheat 316; 17 US Rep 159 (1819) at 404-405; 199 per Marshall CJ: "The government of the Union ... is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them and are to be exercised directly on them, and for their benefit." Cited by L Zines, "The Sovereignty of the People" paper delivered at the conference The Constitution and Australian Democracy, Old Parliament House, Canberra, 9-11 November 1995 at 11. Nationwide News [1992] HCA 46; (1992) 177 CLR 1 at 70 per Deane and Toohey JJ. Deane J also used this phrase in Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 180. 170 Federal Law RevieuJ Volume 26 Australian, arguably robbed some of the weight from his theoretical observations. Murphy J argued that the Australian people became sovereign at federation3o and was prepared to imply a wide range of rights on the strength of this view. 31 Murphy J was but one voice on a court of seven, and on the issue of individual rights he was in dissent and easily dismissed. However in 1992, there was a string of decisions where the Court appeared to have adopted many of his ideas.32 Most prominent among these decisions were those dealing with an implied freedom of political discourse. 33 Although only two judges, Deane and Toohey JJ, overtly adopted a Lockean style of reasoning that parallelled Murphy I's approach, there were strong indications that a majority of the Court would follow. There were two main indicators. First, a majority appeared to accept a foundational premise of Lockean logic - that ultimately, sovereignty lay with the Australian people. Secondly, the results of ACTV and Nationwide News suggested that the Court was being less deferential to a sovereign34 Parliament and more concerned with protecting individual rights. Deane and Toohey JJ In Deane and Toohey JI's joint judgments in Leeth and Nationwide News the central elements of Locke's political philosophy are clearly piesent. 35 These ideas are further developed in extra-curial comments made by Toohey J, and Deane I's judgments in Theophanous and Cunliffe. 36 In Leeth, Deane and Toohey JJ noted that "[t]he grants of Commonwealth legislative power contained in s 51 of the Constitution are expressly made 'subject to' the Constitution".37 They stated that the grants of power under s 51 are subject to an implied limitation that "operates to preclude discriminatory treatment either of the States or their instrumentalities generally".38 Deane and Toohey JJ observed that "[the Australian] States themselves are, of course, artificial entities",39 noting that "it would be somewhat surprising if the Constitution, which is concerned with matters of substance, embodied a general principle which protected the States ... but provided no similar protection of the people who constitute the Commonwealth 30 31 32 33 34 35 36 37 38 39 Kirmani v Captain Cook Cruises Pty Ltd (No 1) [1985] HCA 8; (1985) 159 CLR 351 at 383 per Murphy J. Winterton has listed Murphy }'S rights as including "freedom of speech, assembly, communication and travel throughout the Commonwealth, freedom from slavery, serfdom, civil conscription, cruel and unusual punishment, arbitrary discrimination on the ground of sex, and freedom for fully competent adults from subjection to the guardianship of others": G Winterton, "Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?" in C Sampford and K Preston (eds), Interpreting Constitutions (1996) 121 at 129. Justice Kirby, "Lionel Murphy and the Power of Ideas" (1993) 18 Alt L] 253. ACTV [1992] HCA 45; (1992) 177 CLR 106 and Nationwide News [1992] HCA 46; (1992) 177 CLR 1. Strictly speaking, the federal structure of the Constitution means that no parliament in Australia is truly "sovereign", rather it is "supreme": D Kinley, "Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law" (1994) 22 F L Rev 194 at 197. Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455; Nationwide News [1992] HCA 46; (1992) 177 CLR 1. Theophanous [1994] HCA 46; (1994) 182 CLR 104; Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272. (1992) 174 CLR 455 at 483. Ibid at 484. Ibid. 1998 Sovereignty of the People - The New Constitutional Grundnorm 171 and the States".40 It was then suggested that legal equality is a "fundamental constitutional doctrine"41 that is implicit in the "free afeement of 'the people' ... to unite in the Commonwealth under the Constitution". 2 This "free agreement" was derived from references to the people in the Preamble and the covering clauses of the Constitution. The steps of this argument are clearly laid out. (1) Parliament's legislative power is limited by the Constitution. (2) The authority of the Constitution is derived from the free agreement of the people. (3) Although not expressed in the Constitution, the view of the Constitution as a free agreement, and the provisions that prevent discrimination between States, support the inference that there is a doctrine of equality that protects the citizen. (4) As the doctrine of equality is a constitutional doctrine, a piece of legislation that conflicts with the implied doctrine is unconstitutional. This approach was reiterated in Nationwide News. In that case, Deane and Toohey JJ argued that all arms of government, including the judiciary, should be regarded as representative of the people. 43 They emphasised that those who exercise governmental power are "entrusted"44 with such power. At the centre of their account is the "thesis that all powers of government ultimately belong to, and are derived from, the governed".45 Extra-curial comments, made by Toohey J shortly after the decisions in ACTV and Nationwide News, expressed the view that the Constitution was the instrument through which the people transferred their sovereign powers to Parliament. His Honour also echoed Madison's early position that a constitution which endowed governmental institutions with limited powers had no need of a bill of rights, since the authority to abridge the rights concerned had not been ceded to the government in the ;' first place. 46 [W]here the people of Australia, in adopting"a constitution, conferred power to legislate with respect to various subject matters upon a Commonwealth Parliament, it is to be presumed that they did not intend that those grants of power extend to invasion of fundamental common law liberties. 47 40 41 42 43 44 45 46 47 Ibid. Ibid at 485. Ibid at 486. Nationwide NeuJs [1992] HCA 46; (1992) 177 CLR 1 at 74 per Deane and Toohey JJ. Deane and Toohey Jl's opinion parallels the view of the American Federalists who "considered 'every branch of the constitution and government to be popular' and regarded the president, Senate and even the judiciary as well as the House of Representatives as somehow all equal agents of the people's will": G Wood, The Creation of the American Republic, 1776-1787 (1969) at [549]. Ibid. Ibid at 70. See also Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 180 per Deane J. I Loveland, "Sullivan v New York Times Goes Down Under" [1996] Public Law 126 at 133. Winterton also makes this point and notes that "even so, Madison himself changed his mind and became the principal author and proponent of the Bill of Rights": G Winterton, above n 31 at 133-4. Justice Toohey, "A Government of Laws, and Not of Men" (1993) PLR 158 at 170. This approach was also taken in Nationwide News [1992] HCA 46; (1992) 177 CLR 1 at 69 per Deane and Toohey JJ. 172 Federal Law Review Volume 26 This view, that there are some liberties that are "fundamental", is clearly grounded in the Lockean idea that some rights are inalienable and beyond the power of governments. In Theophanous, Deane J's judgment is the most libertarian, strongly linking "the doctrine of representative government, with its underlying thesis of the sovereignty of the governed"48 with the protection of "the freedom of the citizen to engage fully in ... political communications" .'!9 It is notable that Deane J linked a Lockean interpretation of the Constitution with the protection of individual rights. 50 This contrasts sharply with Brennan J's dissent in Theophanous in which he argued that "[t]he freedom which flows from the implied limitation on power considered in Nationwide News and ACTV is not a personal freedom. It is not a sanctuary with defined borders from which the operation of the general law is excluded".51 Through this series of judgments and statements, Murphy J's assertions of individual rights are given theoretical depth. The Constitution is viewed as the instrument through which the sovereign people delegated their sovereign power to the three arms of government; but not those aspects of themselves that are inextricably attached to their humanity. The zenith of this argument is that the judiciary has a role in protecting rights that are fundamental to the individual against invasion by legislative action. As was noted in Part I, this Lockean view requires a fundamental rethinking of the relationship between the legislature and the judiciary. Gone is Dicey's deference to parliamentary sovereignty; rather the powers of Parliament are limited by the fundamental rights of its citizens, and it follows that it is for the judiciary to determine these limits to Parliament's power. The other Judges While not adopting in full the argument of Deane and Toohey JJ, other judges appeared to adopt its first fundamental assumption, namely, that it is the people who are sovereign. As Mason CJ noted in ACTV 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 With the steps of the argument so clearly laid out by Deane and Toohey JJ, it seemed only a matter of time before those who had accepted their first premise would proceed to adopt the rest of their approach. Both the reasoning and the results of the free speech cases were sufficiently broad (and novel in character) to support this view. As the Constitution, ss 7 and 24 used the phrase "chosen b~ the people", at the very least this must entail that the voters be given a "true choice".5 The more expansive formulation, however, was that this phrase meant that the Constitution contemplated a doctrine of 48 49 50 51 52 53 [1994] HCA 46; (1994) 182 CLR 104 at 172-173. Ibid at 184 (emphasis added). Compare with Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 341 per Deane J; ACTV [1992] HCA 45; (1992) 177 CLR 106 at 169 per Deane and Toohey JJ; Nationwide News [1992] HCA 46; (1992) 177 CLR 1 at 78 per Deane and Toohey JJ. [1994] HCA 46; (1994) 182 CLR 104 at 149. Cf 195 per McHugh J. [1992] HCA 45; (1992) 177 CLR 106 at 138. Ibid at 187 per Dawson J. 1998 Sovereignty of the People - The New Constitutional Grundnorm 173 representative government, a doctrine that required to some degree a freedom of political discourse. This expansive view was apparently buttressed by the observation that the Australian people were sovereign. The majorities in ACTV, Nationwide, and Theophanous were prepared to invalidate legislation on the basis of this constitutional implication of representative democracy. Although the judges (apart from Deane and Toohey JJ) did not explicitly say that they were concerned with the protection of individual rights,54 this is certainly how the results of the decisions read. A revolutionary change in the grundnorm? To the delight of many and the horror of some, a bill of rights appeared to have arrived, albeit through judicial implication rather than through the tortuous processes of the Constitution, s 128. This speculation was fuelled by a speech delivered in Darwin by Toohey J, just days after ACTV and Nationwide News were handed down55 where he suggested that "an implied 'bill of rights' might be constructed" by courts which "over time articulate the content of the limits on [legislative] power arising from fundamental common law liberties".56 The method of constitutional interpretation which contemplated judicial protection of rights seems to have at its base Lockean rather than Diceyan assumptions about the relationship between the people, the judiciary and the legislature, as already noted. The implication of representative government, both in its conception and in the potential breadth of its execution, seemed to allow the judiciary a role more commensurate with scrutinising a trust between the sovereign people and their elected representatives, than with merely applying laws as Dicey had prescribed. It was hard to resist the conclusion that there had been a revolutionary change in constitutional interpretation. According to Fitzgerald, "[t]he 1992 High Court year produced somewhat of a 'glorious revolution I for Australians as the liberation from the tyranny of parliamentary supremacy (over the people) came much ... closer".57 McDonald argued that "five High Court judges have decisively moved to a new paradigm of constitutional interpretation: from parliamentary sovereignty to popular sovereignty, and from responsible government to representative government".58 Blackshield was of the view that "[t]he vision of 'representative government' spelled out in the 'free speech' cases is not merely a different umbrella beneath which all 54 55 56 57 58 Most of the majority judges left the question of individual rights open. The joint majority judgment in Theophanous (Mason eJ, Toohey and Gaudron JJ) put it this way: "[w]hether the implied freedom could also conceivably constitute a source of positive rights was not a question which arose for decision in those cases [Nationwide News and ACTV] and it is unnecessary to decide it in this case" (1994) 182 eLR 104 at 125. The decisions in ACTV and Nationwide News were handed down on 30 September 1992. Toohey J's speech was delivered at the conference on Constitutional Change in the 1990s in Darwin, 4-6 October 1992. A revised edition of this speech is: Justice Toohey, "A Government of Laws, and Not of Men?" (1993) 4 PLR 158. Ibid at 170. Schwartz characterises the phrase "a government of laws and not of men" as "a logical response to the colonial experience, an experience that had prejudiced the colonists toward written law as against unwritten principles": B Schwartz, above n 1 at 54. B Fitzgerald, above n 2 at 285. L McDonald, above n 3 at 182, (note omitted). The judges he identified were Mason eJ, Brennan, Deane, Toohey and Gaudron JJ. 174 Federal Law Revie-w Volume 26 proceeds as before, but a new foundation on which, step by step, our constitutional jurisprudence will need to be rethought".59 John Doyle QC (now Chief Justice of the South Australian Supreme Court) agreed, stating that "there is a fundamental movement [in constitutional law] ... which needs to be recognised, discussed and understood".60 Recently, however, predictions of great change have given way to uncertainty. A revolution denied? - the McGinty decision I regard the reasoning in Nationwide News, ACTV, Theophanous and Stephens in so far as it invokes an implied principle of representative democracy as fundamentally wrong and as an alteration of the Constitution without the authority of the people under s 128 of the Constitution. 61 In McGinty the Court rejected by a majority of 4 to 2 the argument that the implication of representative government required that, within practical and rational limits, there should be numerical equality in the size of electorates. Although McGinty was not concerned with either individual rights or free speech, several features of the case suggest that it is a setback for those who had hoped for a more Lockean approach to constitutional interpretation. Far from expanding "representative democracy" - the engine of implied rights - two judges in McGinty suggested that the free speech reasoning was anomalous. McHugh J described the use of representative democracy in the free speech cases as "fundamentally wrong", while Gummow J suggested that the implied freedom of political discussion "[was] an implication at a secondary level" that "departed from previously accepted methods of constitutional interpretation".62 The tenor of the judgments in McGinty also differed from that of the free speech majorities. In contrast to the judicial confidence displayed in ACTV,63 the decision in McGinty emphasised that "the form of representative government which we are to have is left to parliament".64 The opinion that McGinty represents a retreat from the "activism" of the free speech cases is given some force by the argument that "one vote one value" (the issue in McGinty) is at least as central to representative democracy as "free speech" - and possibly more so.65 59 60 61 62 63 64 65 A R Blackshield, above n 3 at 242. Blackshield also refers to the "momentous prospect that the High Court itself may be moving ... from a pervasive assumption of 'parliamentary sovereignty', to one of 'popular sovereignty"': A R Blackshield, "Reinterpreting the Constitution" in J Brett, J Gillespie, M Goot (eds), Developments in Australian Politics (1994) at 24. J Doyle QC, "Commentary" in Courts in a Representative Democracy (1995) at 145 (a comment on L Zines, "Courts Unmaking Laws" ibid at 125). McGinty v Western Australia (1996) 186 CLR 140 at 235-236 per McHugh J. Ibid at 291. For example, "[t]he Court should be astute not to accept at face value claims by the legislature ..." [1992] HCA 45; (1992) 177 CLR 106 at 145 per Mason CJ. (1996) 186 CLR 140 at 183 per Dawson J; at 236 per McHugh J. Compare with J Kirk, "Constitutional Implications From Representative Democracy" (1995) 23 F L Rev 37 at 58-63 and 76 who suggests that universal franchise and equal voting are the most controversial implications of representative democracy. 1998 Sovereignty of the People - The New Constitutional Grundnorm 175 The revolution affirmed? - Lange and Levy In a rare display of unanimity the High Court in Lange reiterated the free speech reasoning of the original free speech cases, particularly that of ACTV and Nationwide News. The Court observed: Sections 7 and 24 of the Constitution, read in context, require the members of the Senate and the House of Representatives to be directly chosen at periodic elections by the people 66 Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates by directing that the members of the House of Representatives and the Senate shall be "directly chosen by the people" ... Furthermore, because the choice given by ss 7 and 24 must be a true choice with "an opportunity to gain an appreciation of the available alternativesIt, as Dawson J pointed out in Australian Capital Television Pty Ltd v The Commonwealth, legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.67 The unanimity of the judgment means that there is no doubt that this reasoning is firmly embedded in Australia's constitutional law. As Toohey J noted in Kruger v Commonwealth, lithe Court's recognition of a freedom of communication and discussion of political matters derived from the Constitution is beyond question". 68 However, despite this entrenchment, Lange can be contrasted with the popular sovereignty thesis on a number of issues. First, there was renewed emphasis in Lange upon deriving the freedom from the text of the Constitution, rather than from the inherent sovereignty of the people. Under the Constitution, the relevant question is not, "What is required by representative and responsible government?1t It is, ItWhat do the terms and structure of the Constitution prohibit, authorise or require?,,69 In contrast to the reasoning in the earlier decisions, there was no appeal to the ultimate sovereignty of the Australian people,70 and indeed the word Itsovereignty" was not used in the Lange judgment. The decision made clear that, far from being the source of the constitutional implication, any rights that accrue to people are as a consequence of the implication which is derived from the (negative) operation of a constitutional prohibition upon legislative activity rather than from a (positive) constitutional protection. 71 It is the 66 67 68 69 70 71 [1997] HCA 25; (1997) 145 ALR 96 at 104. Ibid at 106. [1997] HCA 27; (1997) 146 ALR 126 at 176 per Toohey J, who cited Lange in support of this proposition. As was noted earlier, McHugh J made a similar statement in Levy: "[i]t is not open to doubt that the Constitution protects the freedom of 'the people of the Commonwealth' ... to communicate with each other" [1997] HCA 31; (1997) 146 ALR 248 at 273. [1997] HCA 25; (1997) 145 ALR 96 at 112. See, eg, ACTV [1992] HCA 45; (1992) 177 CLR 106 at 138 per Mason CJ. Kirby J noted in Levy [1997] HCA 31; (1997) 146 ALR 248 at 291 that "[t]he restriction upon the making of laws has a consequence protective of individual freedom of political and governmental communication. It is easy to slip from this fact into the language of individual rights." 176 Federal Law Review Volume 26 residual nature of the people's rights that distinguishes it from the American notion of free speech and its associated delegation theory of individual rights.72 A further reason to suspect that the Lange decision did not affirm the popular soverei~ty approach to constitutional interpretation was indicated by its application in Levy. 3 In that case, the plaintiff argued that a regulation preventing protesters from entering the lakes in which duck shooting was being conducted "effectively silence[d]"74 their political message, contrary to the implied freedom of political discourse. The plaintiff's first submission was based upon the argument that "the ultimate sovereignty of the people of Victoria ... limits legislative power within the State",75 This "popular sovereign~" submission was unsuccessful, the Court preferring to apply the (newly established) 6 test in Lange. Brennan CJ held in Levy that "the objective of the Hunting Season Regulations was the ensuring of a greater degree of safety of persons", that the Regulations "were appropriate and adapted" to this objective and that, "even if reg 5 had had the effect of impairing a freedom to discuss government or politics implied in the Constitution of the Commonwealth, it was not invalidated by the implication".77 Even though the popular sovereignty arguments were unsuccessful in Levy, it may be premature to suggest that this failure is indicative of a lack of resonance of popular sovereignty in the High Court. A simpler explanation may be that the facts in Levy were not sufficiently strong to elicit a response from the Court.78 If this view is taken, the test of the strength of popular sovereignty is yet to come, and is only likely to occur when the balance of public interests is more delicate than it was in Levy. The Court's recent decisions therefore leave the Lockean approach to constitutional interpretation with an uncertain future. The remainder of this article is concerned with how this uncertain status is best resolved and the role that popular sovereignty ought to play in the decisions of the future. 72 73 74 75 76 77 78 The American jurisprudence was explicitly distinguished in Lange [1997] HCA 25; (1997) 145 ALR 96 at 112: "it is the requirement and not a right of communication that is to be found in the Constitution. Unlike the First Amendment to the United States Constitution, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution". [1997] HCA 31; (1997) 146 ALR 248. Levy, transcript of proceedings, High Court, 6 August 1996 at 3. Ibid at 5. The latter half of Levy was heard simultaneously with Lange as in both cases the plaintiffs sought to have the Court reconsider its earlier free speech decisions of Theophanous [1994] HCA 46; (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211. (1997) 146 ALR 248 at 255 per Brennan CJ. See also at 262-263 per Dawson J; at 267-268 per Toohey and Gummow JJ; at 272 per Gaudron J; at 277 per McHugh J; and at 294 per Kirby J. Three judges found it unnecessary to decide the position under the Victorian Constitution: ibid at 255 per Brennan CJ; at 263 per Dawson J; and at 277 per McHugh J. 1998 Sovereignty of the People - The New Constitutional Grundnorm 177 PART III - ASSESSING POPULAR SOVEREIGNTY The first two parts of this article highlighted three primary attributes of the Lockean approach to constitutional interpretation. First, as sovereignty lies with the people themselves, governments hold their powers subject to the people's sovereignty. The Constitution, then, is the instrument through which governmental power is delegated from the people to their agents. This makes the relationship between the people and the legislature a fiduciary one. Secondly, as some rights of the citizen are inalienable, power over such rights has not been delegated through the Constitution and a government acts unconstitutionally if it attempts to infringe such inalienable rights. Thirdly, as guardians of the Constitution, it falls to the judiciary to scrutinise the actions of the legislature and disallow unconstitutional legislation. As was noted in Part I, this model of constitutional interpretation contrasts markedly with that of the Diceyan approach. The completeness of this contrast requires advocates for a new constitutional grundnorm to make a case at several levels. At an empirical level, there are two key shifts that are said to underline the need for a new approach to constitutional interpretation. First, it is argued that the severing of Australia's constitutional dependence upon the United Kingdom by the passing of the Australia Acts of 1986 requires a new approach to interpretation. Secondly, it is also suggested that growing problems with the doctrine of responsible government justify a more interventionist approach from the judiciary. There are also questions of method. When compared to declaratory or legalistic theories of judicial review, the Lockean approach requires judges to apply their own values to interpret a Constitution that is largely silent on issues such as individual rights. Although this is presented by advocates of the Lockean approach as being a more open and honest judicial method, critics question the democratic and historical legitimacy of such an approach. Finally, there are policy and theoretical arguments. The popular sovereignty argument appears to allay doubts that many have felt with the Diceyan treatment of abhorrent laws. If the people are sovereign, then it is arguable that judges are justified, in the extreme case, to protect the people from majoritarian excesses which would be condoned by the absolute nature of Dicey's parliamentary sovereignty. If majority rule is viewed as the main threat to individual rights, then Dicey's great faith in the legislative arm of government appears misplaced. At all levels, the arguments for and against a change in the grundnorm of constitutional interpretation revolve around the relationship between the legislature and the judiciary, and the role that Australia's constitutional history has to play in that relationship. Is a change in grnndnorm required? Constitutional independence As the passing of the Australia Acts of 1986 means that there is no longer a stream of sovereignty flowing from a higher Imperial source, it has been argued that "the present source of validity of the Constitution must be found within Australia".79 Popular 79 A R Blackshield, above n 59 at 26. See also L McDonald, above n 3 at 185. 178 Federal Law RevieuJ Volume 26 sovereignty is suggested as the most convincing candidate, a choice buttressed by the democratic roots of federation and the popular referendum procedure set out in the Constitution, s 128.80 Assuming that sovereignty has cleared the theoretical hurdles,81 and has been successfully transferred from the Imperial Parliament to the people of Australia, the strongest argument for a reinterpretation of the Constitution is that it is now properly regarded as a "compact" or a "free agreement of 'the people"'.82 Blackshield argues that the approach of the majority in Engineers of interpreting the Constitution as an Imperial statute, applying "ordinary lines of statutory construction",83 may no longer be possible. 84 Although the interpretive consequences of the "compact" view of the Constitution would seem to depend upon the identity of the parties to the compact,85 it is far from clear that a change from a "statutory" to a "contractual" view of the Constitution should have an impact on its interpretation. There is a strong current of opinion that suggests that to maintain a rigid link between the source of sovereignty and constitutional interpretation is unduly mechanistic. Winterton's rejection is emphatic: The Commonwealth Constitution is the foundation of the Australian constitutional order, the touchstone of constitutional validity, regardless of whether the Constitution's authority is derived from the approval of the Australian people or the sovereignty of the United Kingdom Parliament. 86 80 81 82 83 84 85 86 A R Blackshield, ibid. There are two considerable theoretical difficulties associated with this transfer. First, the timing is unclear. Although Murphy J solved this difficulty by taking the view that Australia was independent on the date of federation (see Kirmani [1985] HCA 8; (1985) 159 CLR 351), this was "contrary to all political actions, views and assumptions at the time": L Zines, above n 28 at 10 footnote 10. However, there is no clear date upon which a clean transfer of sovereignty could be said to have occurred. The second difficulty is that of equivalence. Unlike the sovereignty of the Imperial Parliament, the sovereignty of the people under the Constitution, s 128 does not include the ability to initiate constitutional amendment: L Zines, ibid at 7-8. One commentator has suggested that even a declaration of an Australian republic would be insufficient to quieten these theoretical doubts: A Fraser, above n 6 at 216. Leeth [1992] HCA 29; (1992) 174 CLR 455 at 486 per Deane and Toohey JJ. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 150 per Knox CJ, Isaacs, Rich and Starke }}. A R Blackshield, above n 59 at 31. Compare Thomson's suggestion that "[t]he compact theory of federation is ... more usually premised on the ... proposition that [the Constitution] constitutes the agreement between constituent States by which they federated": J A Thomson, "The Australian Constitution: statute, fundamental document or compact" (1985) 59 Law Institute Journal 1199 and 1201, with Re Duncan; ex parte Australian Iron and Steel Pty Ltd (1983) 57 ALJR 649 at 671 per Deane J: "[t]he Constitution of Australia was established not pursuant to any compact between the Australian Colonies but, as the preamble of the Constitution emphatically declares, pursuant to the agreement of 'the people' of those Colonies". A compact view of the Constitution was taken by Brennan CJ in Kruger [1997] HCA 27; (1997) 146 ALR 126 at 139, but whether the parties are "the people" or "the Colonies" is left ambiguous: "[t]he Constitution, though in form and substance a statute of the Parliament of the United Kingdom, was a compact among the peoples of the federating Colonies, as the preamble to the Constitution declares". G Winterton, above n 31 at 121 (notes omitted). 1998 Sovereignty of the People - The NelV Constitutional Grundnorm 179 Lindell also argues that a change in approach is unlikely to be required, suggesting that it is unrealistic to assume that either the fact of independence or the different explanation which should now be adopted to explain the fundamental character of the Constitution should have the effect of changing basic principles of interpretation. 87 The tenuous nature of the link between the location of sovereignty and a theory of interpretation is clearly demonstrated by McHugh J in McGinty who recognised that "the political and legal sovereignty of Australia now resides in the people of AustraIia"88 yet simultaneously decried a perceived rejection bJ' other judges of the "principles of interpretation laid down in the Engineers' Case",8 a case that has been identified as the locus of Diceyan reasoning in Australia. 90 The problem with maintaining a sharp distinction between an interpretation of the Constitution as an Imperial statute and that which views it as a compact is that the Constitution is sui generis. It is "a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be".91 This makes it difficult to apply a specialised "compact" or "statute" theory of legal interpretation to a document that, by virtue of its being Australia's highest law, stands at the edge of the legal system on the divide between law and politics. The decline of politics A second argument for departing from Dicey's reasoning is that it relied on the effica~ of a now fading fiction - responsible government. The rise in strong party discipline 2 and the failures of parliaments and of executive governments revealed in wide-ranging Royal Commissions 93 are cited as exposing the inadequacies of Diceyan theory. If faith can no longer be placed in an apparently corrupted political process, yet that same political process is capable of passing laws "to injure the people of Australia considered sectionally",94 the case for an extra check upon legislative power becomes stronger. Judicial review is the suggested remedy. McDonald argues that the more completely the executive controls the legislature, the stronger the reasons for more searching judicial review of legislation become. 95 A difficulty with this argument is that it incorrectly assumes that the Westminster tradition relies on a large separation between executive and legislative power. It is misleading to suggest that the dominance of Parliament by the executive is a new 87 88 89 90 91 92 93 94 95 G Lindell, "Why is Australia's Constitution Binding? - The Reasons in 1900 and Now, and the Effect of Independence" (1986) 16 F L Rev 29 at 44. (1996) 186 CLR 140 at 230. Ibid at 232. A R Blackshield, above n 59 at 29-33; L McDonald, above n 3 at 164. Attorney-General for New South Wales v Brewery Employees' Union [1908] HCA 94; (1908) 6 CLR 469 at 611 per Higgins J; Victoria v Commonwealth [1971] HCA 16; (1971) 122 CLR 353 at 397 per Windeyer J. See also G Lindell, above n 87 at 44-45. L McDonald, above n 3 at 173. P Finn, above n 19 at 12. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 152 per Knox CJ, Isaacs, Rich and Starke JJ. L McDonald, above n 3 at 173. See also D Feldman, "Democracy, the Rule of Law and Judicial Review" (1990) 19 F L Rev 1 at 6-7. 180 Federal La-w Review Volume 26 phenomenon requrrmg a radical rethinking of our constitutional relationships.96 Indeed, as far back as 1867, Bagehot pointed out that under the Westminster system of government there is a "close union, the nearly complete fusion, of the executive and legislative powers".97 The close relationship between the executive and the legislature is explicit in the Constitution, s 64 which embodies a constitutional requirement that members of the executive be elected members of Parliament. 98 A second problem with this argument is that it suggests that for every decline in parliamentary responsibility there should be a corresponding increase in the judicial role. This increase is presented as both straightforward and unproblematic. Fitzgerald describes the High Court as "the most immediate and obvious reformer" of an "impure [Diceyan] constitutional theory".99 The directness of this relationship is questionable. There are a number of remedies to the problems associated with executive dominance of the legislature; an increased judicial role is but one sug~estion.l00 There is some doubt that the judiciary is equipped to solve these problems1 1 and, even if it is, it is a proposal that carries its own difficulties - the threat to judicial independence being the most obvious one.102 Justice Santow has rejected the view that judicial activism should be "motivated by a perceived need to remedy the failure[s] of parliament", arguing that "the motive to fill such a [political] vacuum can be no part of the judicial function".103 Although an advocate for a mOFe Lockean conception of the relationship between the people and the legislature, Finn argues that, on the issue of constitutional interpretation, the judges should not be asked to go it alone: [In relation] to matters which are fundamental to us and to our governance, it should be the Australian people themselves who are asked ... The issues ... are too important to be cast in their present crude form to our judiciary in the expectation that they will divine appropriate solutions from the silences of our constitutions.104 96 97 98 99 100 101 102 103 104 "The primary historical material simply does not support the conclusion that the framers expressly intended to adopt, as a principle of their Constitution, a doctrine of separation of powers - be that doctrine narrowly or broadly conceived." F Wheeler, tIOriginal Intent and the Doctrine of the Separation of Powers in Australia" (1996) 7 PLR 96 at 103. W Bagehot, The English Constitution (1964) at 65 (first published 1867) cited by S Gageler, "Foundations of Australian Federalism and the Role of Judicial Review" (1987) 17 F L Rev 162 at 169. Compare with Lange [1997] HCA 25; (1997) 145 ALR 96 at 105. B Fitzgerald, above n 2 at 300. G Lindell, "Responsible Government" in P Finn (ed) Essays on Law and Government (1995) 75 at 103-111. Campbell argues that "if we despair of politics then courts will not save us". T Campbell, above n 6 at 211. Justice Kirby has noted that judicial activism and the calls for judicial accountability that it creates "will sometimes diminish judicial independence from external pressure": M Kirby, "Judicial Independence in Australia Reaches a Moment of Truth" (1990) 13 UNSWLJ 187 at 194. Justice Santow, "Aspects of Judicial Restraint" (1995) 13 ABRev 116 at 127. Lane has noted the somewhat ambivalent approach of Brennan CJ on this issue: PH Lane, "The Changing Role of the High Court" (1996) 70 AL] 246 at 249 n 39. P Finn, above n 19 at 21. 1998 Sovereignty of the People - The New Constitutional Grundnorm 181 Questions of method As the final section of this article outlines, many of the attractions of the new grundnorm parallel those of a bill of rights, not least because interpretation based upon popular sovereignty could potentially lead to an implied bill of rights. However there is a notable difference between the question "Should Australia have a Bill of Rights?" and "Should Australian judges imply a Bill of Rights?". Unlike popular sovereignty, which relies on a Lockean realignment of our fundamental institutions, a legislative bill of rights can be conceived in purely Diceyan terms as an express permission from the sovereign Parliament to the judiciary to review certain matters. This difference expresses itself in three ways. First, when debating a bill of rights it would be assumed that the bill itself would attain democratic legitimacy by taking the form of either a constitutional amendment or legislation. Secondly, although likely to be cast in general language, the guarantees in such a bill would be express rather than implied. Further, popular assent to a bill of rights would negate arguments that protection of individual rights by the judiciary constitutes an unauthorised departure from Australia's traditions. These differences point to three major criticisms made of the judicial implication of rights. First, such rights lack democratic legitimacy, as they allow legislation of a popularly elected Parliament to be overruled by an unelected judiciary. Secondly, there is a lack of certainty in relation to rights that are implied by judges, rather than expressed by the people. Thirdly, implied rights lack historical legitimacy. Is judicial implication of rights anti-democratic? Although all theories of judicial review, including Dicey's, have a problem legitimising the practice of unelected judges construing, narrowly if need be, the laws of an elected legislature, the counter-majoritarian problem remains doubly difficult for those who advocate popular sovereignty as a new constitutional grundnorm. Critics are quick to note the irony of an unelected elite overruling the laws of an elected Parliament in the name of popular sovereignty.10S There are a number of possible answers to the "anti-democratic" argument. The simple but circular answer is to assert that democracy is much more than unmitigated majoritarianism and that judicial review is integral to any model of democracy. This simplistic answer does, however, point to a general observation concerning the legitimacy of judicial review. The criticism of judicial review as "anti-democratic" depends upon a gap between the supposed democratic legitimacy of the legislature and the lack of that legitimacy in the judiciary. Judicial review can therefore be defended from the anti-democratic accusation by closing this gap.106 As will be seen in the discussion that follows, those advocating popular sovereignty and an expanded judicial role attempt to close the "anti-democratic gap" by emphasising the democratic defects of the political process and the inescapably political role of judges. One way to establish the democratic legitimacy of constitutional adjudication is to portray the Constitution itself as an expression of the will of the people. Toohey J has 105 G Winterton, above n 31 at 136. See also L Zines, above n 28 at 20. 106 L H Tribe, American Constitutional Law (2nd ed 1988) at 62-65. This argument is applied by D Feldman, above n 95. 182 Federal Law Review Volume 26 argued that "when judicial review occurs pursuant to a written constitution which was adopted and can be amended by means reflective of the popular will, it may be regarded as not even anti-majoritarian".107 If Deane and Toohey JJ are correct in regarding the Constitution as "a free agreement between the people", then their implication of constitutional rights merelr involves preferring "the intention of the people to the intention of their agents".10 The argument then becomes whether the characterisation of the Constitution as a "higher law" is correct, and if so, whether the implication of rights is a valid interpretation of the Constitution. Thus, this argument clearly depends for its plausibility upon the extent to which the judges are deriving rights from the Constitution. The further the judges move from the text, the more this plausibility is strained. This leads to a second facet of the anti-democratic critique, that of vagueness. Vagueness The second charge is that if judicial decisions are based on implied rather than express rights, they will inevitably rely on an individual judge's vague and idiosyncratic notions of justice. If the sovereignty of the people requires the notional agreement of all the people to unite, ... the next step is to determine the notional terms and conditions, not expressed in the Constitution, that free and equal persons might have reasonably been expected to accept. ... [W]e are led to an array of different social contract theories. The way is open for the judges to apply whatever legal philosophy they think will ensure a free and democratic society.109 While the vagueness charge is normally based on the view that certainty in decision making is an aspect of justice, it can also be seen as a version of the anti-democratic complaint. By giving the judges a broad licence to apply their own views, power is shifted to an unacceptable extent to an unelected judiciary.110 Supporters of the High Court's approach in the "free speech" cases defend the role of judges in making value judgments, arguing that no one believes the "fairy tales"111 of the "slot machine" judge who merely applies the law to the facts of the case. 112 As a consequence, the supposed certainties of Dixon's "strict and complete legalism"113 belong to a bygone era. McDonald suggests that legalism's failure is due to its 107 Justice Toohey, above n 47 at 172. Justice Toohey adopts Ackerman's vision of a "dualist democracy" in which the criterion for democratic legitimacy of normal legislation is only approval from the people's representatives, while constitutional change requires the negotiation of "a specially onerous lawmaking path": B Ackerman, "Constitutional Politics/Constitutional Law" (1989) 99 Yale Law Journal 453 at 464. 108 A Hamilton, J Madison, and J Jay, The Federalist Papers (New American Library ed, 1961) 467 cited by S Gageler, above n 97 at 167. 109 L Zines, above n 28 at 24. Cf McGinty 186 CLR 140 at 269-270 per Gummow J. 110 See, eg, Zines' critique of Deane ]'s judgment in University ofWollongong v Menvally [1984] HCA 74; (1984) 158 CLR 447: L Zines, above n 28 at 20. 111 Lord Reid, "The Judge as Law Maker" (1972) 12 Journal for the Society of Public Teachers of Law 22 at 22. 112 L McDonald, above n 3 at 191. 113 Sir Owen Dixon, "Address upon taking the oath of office" reproduced in (1952) 85 CLR xi at xiv. 1998 Sovereignty of the People - The NeuJ Constitutional Grundnorm 183 unsustainable claims to objectivity.114 As it is impossible to be legally objective, this critique of legalism argues that the inevitability of value judgments makes them legitimate. The critique of legalism is on strong ground when it suggests that legalism is unable to deliver determinate results. The conclusion that judges therefore playa political role, albeit in an accidental way,115 is also relatively uncontroversial. However the assertion - that because judges are political their decisions are unrestrained (and, because indeterminacy is unavoidable, unrestrainable) - is far more tenuous. Judges are constrained by history, most obviously by the doctrine of precedent. Although the High Court may of course overrule its own decisions,116 the very fact that prior decisions must either be followed or distinguished in a plausible way operates as a constraint on arbitrary decision making. 117 A rejection of legalism cannot give licence to ignore the text of the Constitution. Nor, in what might now be termed a "post-modern" approach to constitutional interpretation,118 can it justify the rise of Evans' "racy dogmatism".119 The critique of legalism cannot offer a justification for a particular interpretative methodology. The most it can do is deflect criticism that judges are referring to their own values, a criticism that is becoming less prominent with the frank acknowledgment by many judges that reference to values is inevitable. 120 It is not necessary to rely on the unachievable certainties of legalism to make an argument that a particular method of interpretation is unacceptably vague. Criticism of vagueness is not synonymous with a view that judicial reference to values is illegitimate. For this reason, demolition of legalism in response to accusations of vagueness may not be entirely to the point. The judicial responsibility to the common law Before moving from the anti-democratic criticism and the associated complaints of vagueness, it is useful to consider whether the judicial implication of rights is justified by the judges' "inescapable ... duty ... to change the common law when circumstances 114 115 116 117 118 119 120 L McDonald, above n 3 at 186. Accidental because courts are unable to initiate proceedings. L Zines, The High Court and the Constitution (4th ed, 1997) 433-444. Coper argues that the High Court's "accountability comes about through professional and public scrutiny of its decisions": M Coper, "The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?" [1994] SydLawRw 15; (1994) 16 Syd LR 185 at 191. The influence of the "post-modern age" is considered by B Fitzgerald, above n 2 at 287, 314 and 319-321. G Evans, liThe Most Dangerous Branch? The High Court and the Constitution in a Changing Society" in D Hambly and J Goldring (eds), Australian LauJyers and Social Change (1976) 13 at 37. Evans' "racy dogmatism" has been described by Gageler as "wholly objectionable": S Gageler, above n 97 at 195. Justice Mason, "The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience" (1986) 16 F L Rev 1 at 5: "it is impossible to interpret any instrument, let alone a constitution, divorced from values". See also McHugh J, liThe Law-making Function of the Judicial Process - Part II" (1988) 62 ALI 116 at 124: "policy factors are decisive in hard cases". 184 Federal Law Review Volume 26 so require".121 Although I agree with this characterisation of the judicial duty to the common law, there are two reasons why this will not save an implied constitutional right from the anti-democratic criticism. First, as was pointed out by Brennan J in Theophanous,l22 there is a large difference between judges reforming the common law and implying rights that in effect operate to overrule legislation. The currency of the common law has always been a judicial responsibility and, even if judges are "activist" in their interpretation of the common law, such a role is not anti-democratic as judicial initiatives can always be overruled by legislation. Secondly, the duty to the common law and the argument that parliamentary supremacy or sovereignty is itself a common law principle do not add up to support Doyle's argument that "there is scope for the common law to develop in a fashion which causes fundamental change to the place of parliament in our system".123 This is because parliamentary supremacy is much more than a "common law principle". It is a grundnorm, "a unique hybrid of law and political fact".124 Is judicial implication of rights ahistorical? Implicit in the tone of many of those advocating a change in the constitutional grundnorm, such as "radical relocation of sovereignty"125 or a "glorious revolution",126 is an acknowledgment that the new approach requires a break with Australia's history. Finn is explicit: The ideas that government is a trust, that the officers of government, whether elected or appointed, are trustees for the people and as such are accountable to them, have had little resonance in Australian legal, or for that matter political, thought until very recent times.127 In the face of an apparent break with history, those who advocate a new grundnorm have two options: either to argue that, contrary to the revolutionary tone, Australia's constitutional history justifies and supports a new basis for constitutional interpretation; or to admit that the new paradigm of interpretation is not justified by history, but argue that this dissonance is irrelevant. (i) The new constitutional grundnorm is justified by history - Australia's republican heritage At its zenith, the new constitutional grundnorm would give the Court a role in protecting implied individual rights against legislative encroachment.128 The 121 J Doyle, "Common Law Rights and Democratic Rights" in P Finn (ed), Essays on Law and 122 123 124 125 126 127 128 Government (1995) 144 at 152. "[I]t is clear that judicial development of the common law is a function different from judicial interpretation of statutes and of the Constitution" [1994] HCA 46; (1994) 182 CLR 104 at 143. J Doyle, above n 121 at 147 (writing before his appointment as Chief Justice of South Australia). G Winterton, above n 31 at 136. An analogous observation was made earlier in this article in relation to interpretation in accordance with either a "statute" or "compact" view of the Constitution. See text accompanying nn 85-91 above. L McDonald, above n 3 at 182. B Fitzgerald, above n 2 at 285. P Finn, above n 19 at 9-10 (notes omitted). See Part II of this article. 1998 Sovereignty of the People - The New Constitutional Grundnorm 185 traditional view of the Constitution's protection of individual rights was expressed by Dawson J in Cunliffe: The Constitution does not guarantee freedom of communication or even freedom of speech. Guarantees of this kind could have been included but, with rare exception, they were not. The choice was a conscious one. Those responsible for framing the Constitution had before them the model of the American Bill of Rights but they rejected it, exhibiting none of the distrust of the will of the majority which is a feature of American political life. 129 Mason CJ in ACTV covers similar ground, noting that the framers of the Constitution refused "to place fetters upon legislative action" believing that the "citizen's rights were best left to the protection of the common law in association with the doctrine of parliamentary supremacy".130 Mason CJ concluded: In the light of this well recognized background, it is difficult, if not impossible, to establish a foundation for the implication of general guarantees of fundamental rights and freedoms. To make such an implication would run counter to the prevailing sentiment of the framers that there was no need to incorporate a comprehensive Bill of Rights in order to protect the rights and freedoms of citizens. That sentiment was one of the unexpressed assumptions on which the Constitution was drafted. 131 In Theophanous, Deane J squarely confronted this "well recognized background". He dismissed as "flawed at every step"132 the argument that the failure to include a United States' style bill of rights demonstrates that it was the intention of the framers that such rights should not be implied from the Constitution. Deane J argued that at least two of the framers, Griffith and Barton, were supportive of the implication of rights from the Constitution. Deane J observed that in R v Smithers 133 Griffith CJ stated, and Barton J agreed, that the citizen ... has the right to come to the seat of government ... to seek its protection, to share its offices, to engage in administering its functions ... and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it. 134 As any such right must be implied from the Constitution, Deane J reasoned that the legitimacy of implying rights from the Constitution has long been established. 135 However, there is some leeway in the term "right", as Deane J himself acknowledged. 136 The rights expressed in R v Smithers are derived from a federal 129 [1994] HCA 44; (1994) 182 CLR 272 at 361. Dawson Jcited H Moore, The Constitution of the Commonwealth of 130 131 132 133 134 135 136 Australia (2nd ed 1910) at 614-615 and JA La Nauze, The Making of the Australian Constitution (1972) at 227. [1992] HCA 45; (1992) 177 CLR 106 at 136 citing a Dixon, Jesting Pilate (1965) 100 at 102. Ibid. [1994] HCA 46; (1994) 182 CLR 104 at 167. [1912] HCA 92; (1912) 16 CLR 99. Ibid at 108, citing Miller J in Crandell v State of Nevada [1867] USSC 15; 73 US 35 at 44 (1867). [1994] HCA 46; (1994) 182 CLR 104 at 169. [1994] HCA 46; (1994) 182 CLR 104 at 168: II [I]n a constitutional context, the word 'rights' is commonly used as referring not only to rights in the sense of expressly conferred free standing rights enforceable against either the world or particular persons who are under a corresponding duty but also to privileges and immunities which are inherent in, or flow from, constitutional restrictions upon legislative, executive or judicial power. It is in that broad sense that the word is used when the phrase 'Bill of Rights' is applied to the first ten or fourteen Amendments of the United States Constitutionll · 186 Federal Law Revie-w Volume 26 perspective. They are rights relating to a person's participation in Commonwealth politics which cannot be taken away by State governments. It is far from clear that Griffith CJ and Barton J saw these rights in the same sense as those protected by the United States Bill of Rights. Regardless of what one thinks of the merits of Deane 1's argument, his emphasis on the right of citizens to petition their government is unmistakably "republican" in tone. "Republican" in this sense means more than anti-monarchical; it refers more broadly to the project "to expand participation by citizens in the exercise of constitutional and civic authority, in both the internal political order of the state and in the institutional life of civil society".137 This goal is achieved by structuring the governmental system to empower the citizen. Governmental powers may be limited through express guarantees of citizens' rights, or may be limited more systemically through division along two planes: first between categories of governmental power, in accordance with the doctrine of separation of powers; and secondly on federal lines between the centre and the States and Territories. The republican concern with checking governmental power means that emphasis upon the republican aspects of Australia's history helps present the judicial protection of individual rights "against the leviathan of the modern state"138 as consistent with that history. McDonald has suggested that "Australia's constitutional heritage is more subtle and complicated than has formerly been recognised", arguing that "there is a growing recognition that ... republicanism, provid[es] an alternative and powerful political tradition".139 John Williams has painted Andrew Inglis Clark as a republican (a person Deane J has referred to as "the primary architect of our Constitution")140 concluding that: [t]he identification, within the "fabric" of the Constitution, of certain implied rights and guarantees should require us to re-discover the work of Andrew Inglis Clark. Notwithstanding the hollow protestations that such implications are the actions of an "unelected and unrepresentative judiciary", the High Court has a unique opportunity to place the Constitution upon the original footings which Clark marked out for it.141 While Clark's first influential draft of the Constitution was republican in structure, featuring federalism, the Senate and a strong central court, not all of his republican advocacy was successful. Individual rights were not explicitly protected either through a bill of rights or an equal protection clause. The failure of the equal protection clause is perhaps more notable, as it was expressly voted upon and rejected at the Melbourne Convention of 1898. Most delegates wished to leave the parliaments of Australia unfettered and were concerned "as to the limits [the equal protection clause] would place on the States' capacity to discriminate on the basis of race".142 137 A Fraser, "In Defence of Republicanism: A Reply to George Williams" (1995) 23 F L Rev 362 138 139 140 141 142 at 369, replying to G Williams, "A Republican Tradition for Australia?" (1995) 23 F L Rev 133. Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 120 per Deane]. L McDonald, above n 3 at 183-184. Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 172. ] M Williams, "'With Eyes Open': Andrew Inglis Clark and Our Republican Tradition" (1995) 23 F L Rev 149 at 179 (note omitted). Ibid at 178. 1998 Sovereignty of the People - The New Constitutional Grundnorm 187 It is not possible to understand our Constitution's structure without republicanism, yet it is not possible to understand much of the content of our Constitution within that tradition. This is because Australia's Constitution is an amalgam of "four great constitutional principles" - representative government, federalism, the separation of powers, and responsible government under the Crown. 143 Not all of these principles are republican. It is notable that responsible government is expressly conceived as responsible government under the Crown. Althouih some had low expectations of this peculiarly Australian combination of principles14 and others see the amalgam as an "uneasy equilibrium",145 the combination itseH is impossible to ignore. Our Constitution is only haH republican. Republicanism should not be regarded as "an alternative" method of understanding our Constitution, but rather as an integral, albeit partial, account. Accordingly, to present the new grundnorm of constitutional interpretation as consistent with Australian constitutional history, requires an understanding of significant non-republican parts of that history. (ii) Are the framers' opinions relevant? Perhaps sensing that his historical argument was not entirely convincing, Deane J proffered as a supplementary argument that even if it could be established that it was the unexpressed intention of the framers of the Constitution that the failure to follow the United States model should preclude or impede the implication of constitutional rights, their intention in that regard would be simply irrelevant to the construction of provisions whose legitimacy lay in their acceptance by the people.146 This is because to construe the Constitution on the basis that the dead hands of those who framed it reached from their graves to negate or constrict the natural implications of its express provisions or fundamental doctrines would deprive what was intended to be a living instrument of its vitality and its adaptability to serve succeeding generations.147 Although this "living force"148 argument might jUstify some implications, it does not readily provide a standard by which to determine which implications are legitimate and those which are not. This is not the place for a detailed survey of the large literature on original intentions,149 except to note that there are different levels at 143 G Winterton, Parliament, the Executive and the Governor-General: A Constitutional Analysis 144 145 146 147 148 149 (1983) at 1. "[E]ither responsible government will kill federation or federation will ... kill responsible government": J Hackett, Official Record of the Debates of the Australasian Federal Convention (Sydney 1891) (Legal Books edition 1986), Vol I at 280. G Winterton, above n 143 at 1. Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 171. Ibid. Cf Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 128 per Mason CJ, Toohey and Gaudron JJ; at 197 per McHughJ. See also McGinty (1996) 186 CLR 140 at 281 per Gummow J. I Clark, Studies in Australian Constitutional Law (1901) at 21-22 cited in Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 171 per Deane J. Recent Australian contributions include S Donaghue, "The Clamour of Silent Constitutional Principles" (1996) 24 F L Rev 133; J Goldsworthy, "Implications in Language, Law and the Constitution" in G Lindell (ed), Future Directions in Australian Constitutional 188 Federal Law Review Volume 26 which the argument can be made: from the view that original intentions are absolutely determinative (rightly dismissed by Inglis Clark and Deane J)150 to the view that they are absolutely irrelevant - an untenably extreme position. 151 In my view, respect for Australia's history is not established by either blind deference to the "intentions of the framers" nor by cavalier indifference to them. History must be engaged with, argued about, and balanced with the demands of contemporary Australia. Our history suggests that for the Court to cast itself as the protector of individual rights would require nothing less than a "revolution" in the constitutionalgrundnorm. Even if the case for popular sovereignty were compelling, in the absence of authorisation from the people, the ease with which the Court can be accused of acting in defiance of Australia's history should lead to hesitation in endorsing the judiciary as the appropriate body to lead the revolutionary charge. Dicey and distrust of government The discussion so far has focussed on the larger judicial role necessitated by the implication of rights when compared with the judicial role in protecting rights expressed in a bill of rights. The next section examines the theoretical motivations for supporting or opposing popular sovereignty as a new constitutional grundnorm. Distrnst of Dicey The willingness to look to the judiciary to solve problems associated with the executive's dominance of the legislature is perhaps explained by an impatience with the Diceyan theory that gives ultimate power to the farliament and expressly refuses to elevate individual rights above the sovereignty15 of parliament. Understandably, this account of constitutional law has discomforted many commentators. 153 There is an Law (1994) 150; G Craven, "Original Intent and the Australian Constitution - Coming Soon to a Court Near You?" (1990) 1 PLR 166; P Schoff, "The High Court and History: It Still Hasn't Found(ed) What It's Looking For" (1994) 5 PLR 253. 150 Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 168. Cf Sir Anthony Mason, "The Interpretation of a Constitution in a Modern Liberal Democracy" in C Sampford and K Preston (eds) Interpreting Constitutions (1996) 13 at 13; S Donaghue, ibid at 151-153. 151 Primarily because the very point of having a Constitution is undermined. "Our peculiar security is the possession of a written Constitution. Let us not make it blank paper by construction." T Jefferson, Writings of Thomas Jefferson (Ford ed 1892) at 247 cited by Justice Kirby, "The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms" (1988) 62 ALJ 514 at 521. Cf A Scalia, "Originalism: The Lesser Evil" (1989) 57 Cincinnati LR 849 at 862 cited by J Goldsworthy "Originalism in Constitutional Interpretation" (1997) 25 F L Rev 1 at 43 n 218. 152 Although Australian parliaments are more accurately described as "supreme" rather than "sovereign" (see n 34 above), this observation does little to mitigate fears that Dicey's theory allows for, and justifies the excesses of, majoritarianism. This is because within the heads of power outlined in the Constitution, the Commonwealth powers are traditionally regarded as plenary. And, although under the Constitution, s 109 State laws are invalid to the extent that they conflict with validly passed Commonwealth laws, absent such a conflict State legislative powers are also absolute. 153 Compare with Building Construction Employees and Builders' Labourers Federation of Nell} South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 402 per Kirby P. 1998 Sovereignty of the People - The New Constitutional Grundnorm 189 obvious tension between the plenary powers of parliament and the requirements of morality, justice and universal human rights. The Lockean approach resolves this tension by allowing judges to limit parliamentary sovereignty to the extent that it allows infringement of fundamental common law rights, such rights, on the delegation view of the Constitution, having never been ceded to the Parliament in the first place. With supporters of Dicey constantly asked to defend the indefensible - how it can be "legal" for a parliament to pass laws which infringe fundamental rights - the refusal to elevate individual rights above parliamentary sovereignty is, at the very least, a rhetorical weakness. However, I do not think that this problem is a real one. The discomfort with Dicey results from a caricature of his theory, one that results from taking an "ultimate" perspective of legal theory. Dicey is attacked for having no theoretical response to the hypothetical Herodian law. 154 Indeed Dicey's response is to highlight the political rather than legal constraints: If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislators must go mad before they could pass such a law, and subjects be idiotic before they could submit to it. 155 It is questionable whether analysis in extremis is enlightening.156 Consideration of any legal theory in the extreme or ultimate case is likely to render it ridiculous. Dicey's apparent endorsement of a clearly despotic law is only problematic if his e:mphasis on political remedies is ignored. Further, consideration of a law which is clearly despotic makes Dicey's sensitivity to the interpretive role of judges irrelevant. It is hardly surprising that Dicey's theory looks a little thin when it has been stripped of these subtleties through consideration of an extreme and unlikely case. The distortion of Dicey's theory, when considered in the extreme, suggests that the attractions of the popular sovereignty method of interpretation - attractions which are most prominent in the extreme case - might be more apparent than real. Lee has questioned the utility of "ttrJing] to alter our [United Kingdom] constitution to combat improbable eventualities".1 In my view, the attempt to provide a legal theory to cover all conceivable possibilities amounts to a flawed attempt to close constitutional discourse. As Tribe has mused: Constitutional law is not mathematics - but one must wonder why, if mathematicians in this post-Godelian age treat as inevitable the fact that interesting logical systems are open-ended constitutional lawyers continue to demand that their universe of discourse g be closed. 15 Distrust ofgovernment As has been discussed, Dicey placed both legal sovereignty and a great deal of theoretical faith in the legislative arm of government. It is therefore not surprising that those who distrust Dicey do not share his faith in Parliament. Advocacy of popular 154 T R S Allan, "The Limits of Parliamentary Sovereignty" [1985] Public Law 614. 155 A V Dicey, above n 23 at 81, citing L Stephen, Science of Ethics (1882) at 143. 156 Compare with submissions in Levy, High Court, 6 August 1996 at 5 and 8. Gummow J 157 5 Lee, "Comment II", comment on T R S Allan, above n 154 at 633. 158 L Tribe, above n 106 at 61. Tribe makes reference to E Nagel and J Newman, Godel's Proof (1958). commented (at 12) that "[g]rand abstractions tend to be misleading". 190 Federal Law Review Volume 26 sovereignty, that is, a view that Parliament can be limited by "fundamental rights" of the citizen, relies in part for its persuasiveness on the view that governments are not to be trusted. Fitzgerald's disaffection with the political process in Australia is clear: For too many years Dicey's theory of legal sovereignty residing in the parliament and political sovereignty existing in the people has been used by those in power to the disadvantage of the ultimate generators of power, the people.159 These sentiments are prominent in the judgments of Deane and Toohey JJ. Deane J has described the modern state as a "leviathan" from which an individual citizen legitimately seeks protection.160 In Leeth, Deane and Toohey JJ underlined the importance of citizens' rights (in comparison to States' rights) by emphasising the artificial nature of State governments.16f While the protection of citizens' rights against encroachment by the state appears to motivate the champions of popular sovereignty, the model of "citizen v state" is not without difficulty. An initial difficulty is that it is not how Australians have traditionally regarded the relationship. A second problem is that it appears to ignore the power of large private institutions, and, perhaps inadvertently, limits the power of the government to take positive steps to advance the rights of citizens. Australians' attitude to government In contrast to fost-revolutionary Americans, who regarded government as "inherently dangerous",16 Australians had a far more trusting attitude towards government. In Australia, unlike America, the emphasis was not so much upon "the need to distribute and separate mistrusted governmental power"163 but rather to "make it [government] a more effective instrument of the popular will."164 Very different histories underlie these divergent attitudes to government. The Americans' bitter experience with colonial rule made them sympathetic to a literal reading of Lord Coke's dictum in Dr Bonham's Case (which suf&ested that, in extreme "As the struggle with cases, the common law could invalidate an Act of Parliament.) the mother country intensified ... Americans were increasingly prepared to accept ... that there were fundamental legal principles beyond the power of Parliament to disturb".166 In the face of hostile legislation from Britain, this conclusion was clearly crucial to the Americans but, of course, Australia did not share this aspect of the American historical experience. The historical divergence is underpinned by philosophical differences. Drafted one hundred years after the American Constitution, the Australian Constitution was grounded in theories of utilitarianism rather than those of natural law. In contrast to 160 161 162 163 164 B Fitzgerald, above n 2 at 265 (note omitted). Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 120. [1992] HCA 29; (1992) 174 CLR 455 at 484. Cf Metwally [1984] HCA 74; (1984) 158 CLR 447 at 476-77 per Deane J. S Gageler, above n 97 at 167. G Wood, above n 43 at [559]. S Gageler, above n 97 at 171. 165 [1572] EngR 107; (1610) 8 Co Rep 113b at 118a[1572] EngR 107; , 77 ER 646 at 652 per Coke CJ. 166 B Schwartz, above n 1 at 57. 159 1998 Sovereignty of the People - The New Constitutional Grundnorm 191 America, Australia has been characterised as "a Benthamite society",167 a point that is illustrated by Wise: The dominant idea of the average voter is to make Australia a better country to live in for men of his own class, - for he has learnt by experience that men of wealth and ability are well able to look after themselves, - and so, far from mistrusting Governmental action, he draws legislation into his service as a ready and effective instrument of reform. This does not imply any adherence on his part to a particular theory of the State; for the Australian is a voter and not a philosopher, and his democracy is not so much a reasoned creed as an instinct.168 These differences have arguably continued through to the present day. There still seems to be "a deep American distrust of 'government' in all its manifestations"169 while the results of the 1988 referendum suggest that "the Australian community prefers its detailed rights to be reposed in elected legislatures".170 History, as has been argued,171 is not determinative of the future. However, it should be respected and taken into account when assessing the strength of the proposals for change. Citizen v State While enthusiasts of critical legal studies (CLS) may understate the utility of "rights" when dismissing them as a type of "false consciousness",172 the model of "individual rights v monolithic state" does appear to be a little left behind in a world of super corporations. Certainly an exaggerated emphasis on the competitive aspects of the relationship between the citizen and state can justify results that are ambivalent from an individual rights perspective. Frank Brennan has commented: It is a bold step to assume that by constitutionalising an issue, everybody gains ... [W]hen the issue impacts on all, it may be too one-dimensional a view of the human person to portray the issue as a conflict between the individual David and the Goliath state.173 In relation to the decisions in Nationwide News and ACTV, Thomson and others have pointed out that "the result of these cases was stark: ~udicially created 'human rights' protected and benefited large media corporations".l 4 This result appears to be an 167 D Partlett, "From Red Lion Square to Skokie to the Fatal Shore: Racial Defamation and 168 B Wise, The Commonwealth ofAustralia (1909) at 51, cited by S Gageler, above n 97 at 171. 169 F Schauer, Free Speech:: a Philosophical Enquiry (1982) at 86, cited by M Chesterman, "The 170 171 172 Money or the Truth: Defamation Reform in Australia and the USA" [1995] UNSWLawJl 16; (1995) 18 UNSWLJ 300 at 315. Justice Kirby, above n 102 at 195. In relation to the intentions of the framers, see discussion above text at nn 146-151. For a summary of the CLS attitude to rights see R Delgado, "The Ethereal Scholar: Does Critical Studies Have What Minorities Want?" (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 301. Cf P Williams, "Alchemical Notes: Reconstructing Ideals From Deconstructed Rights" (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401 at 409. F Brennan, "An Australian Convert From a Constitutional Bill of Rights" (1996) 7 PLR 132 at 133. J Thomson, "An Australian Bill of Rights: Glorious Promises, Concealed Dangers" (1994) 19 MULR 1020 at 1056. According to Fraser lI[t]he High Court has yet to recognise the constitutional dangers inherent in the political reality of concentrated corporate power and the growth of global media empires": A Fraser, above n 6 at 227. Commenting on ACTV, Campbell argued that it is "only by discounting the disproportionate influence of wealth is Freedom of Speech" (1989) Vanderbilt Journal of Transnational Law 431 at 444. 173 174 192 Federal Law Review Volume 26 example of a problem identified by Sampford: "because they are treated as individual citizens, 'private' institutions ~et the benefit of theories that set out the kinds of rights that citizens should have".l 5 The tension between citizens' rights and those of corporations is apparent in Deane 1's judgment in Theophanous, the most libertarian of the judgments in that case. 176 Although he acknowledged that "the proprietors of media outlets are commonly large and powerful corporations", he nevertheless argued that "the freedom of the citizen to engage in significant political communication and discussion is largely dependent upon the freedom of the media".177 An unwelcome by-product of the "citizen v state" model of interpretation is that it restricts the positive role for the state in protecting and advancing the welfare of its citizens. The judgment in ACTV is a good example. After a long period of consultation and debate, a somewhat clumsy amendment (Part IIID) to the Broadcasting Services Act 1992 (Cth) was enacted, which aimed, through limiting expensive election advertising, to reduce large scale campaign fundraising activity (an activity that at least one government report argued was a corrupting influence upon both the quality of political discourse and upon the independence of the governments).178 Part IIID was found unconstitutional by a majority of the court. Campbell points out that the cogency of the Court's arguments depends upon a "formal, negative" conception of "freedom of communication" equating "freedom" with "absence of legal prohibitions".179 It is of more than passing interest that Kirby J has suggested that the founding father of implied rights, Lionel Murphy, might not have been in the majority in ACTV: "He would, of course, have been sympathetic to the notion of implied constitutional rights ... [b]ut I suspect that he might have been more affected ... by his communitarian view ... [that Pt IIID was] a positive contribution to informed discussion and choice".180 The ambivalent relationship of the ACTV decision to the quality of political discourse is paralleled by its ambivalent relationship with a theory of constitutional interpretation that has at its heart the "sovereignty of the people". Although references to "sovereignty of the people" in ACTV provide much of the impetus for the popular sovereignty theory, the republican sentiment that lies behind such a theory is in part denied when legislation to improve political discourse is struck down as unconstitutional. George Williams has gone so far as to argue that the Court's failure in ACTV to grant Parliament "a margin of appreciation" lends support to his view that Australia currently lacks a refublican tradition capable of influencing the course of constitutional development. 18 Although I am not in wholehearted agreement with 175 176 177 178 179 180 181 it possible to consider that the enacted reforms [Broadcasting Services Act 1992 (Cth), Part IIID] did not provide an appropriate move towards a 'more even playing field"': T Campbell, above n 6 at 206. C Sampford, "Law, Institutions and the Public/Private Divide" (1991) 20 F L Rev 185 at 205. Theophanous [1994] HCA 46; (1994) 182 CLR 104. Ibid at 185. Commonwealth Parliament Joint Standing Committee on Electoral Matters, VVho Pays the Piper Calls the Tune (1989). T Campbell, above n 6 at 208. Justice Kirby, above n 32 at 256. G Williams, above n 137 at 147-148. 1998 Sovereignty of the People - The New Constitutional Grundnorm 193 Williams' view of Australia's republican tradition, his arrment demonstrates the ambivalent place that ACTV must occupy in that tradition. 18 Faith in politics is crucial to Dicey and, if a convincing case of "distrust" could be made, it would provide a compelling ground for reassessing the role of Diceyan theory. However, if we are to be persuaded to abandon our historical faith in parliament, we need more than caricatured comparisons made in the extreme case and a broader focus than the "citizen v state" model can provide. CONCLUSION - THE FUTURE OF SOVEREIGNTY OF THE PEOPLE It may be that Australians would be best served by a revolution in constitutional interpretation towards a theory that draws more heavily upon the natural law tradition, that puts greater emphasis upon the separation of powers and has a more American concern with an emphasis (in rhetoric at least) on individual rights. The strongest arguments for such a change are empirically based - the severing of constitutional dependence on the United Kingdom and the problems associated with responsible government - problems underlined by a "depressing succession of Royal Commission reports".183 However, even if the case for a more Lockean style of interpretation were overwhelming, it remains to be shown that the judicial branch is the best to lead such a revolution. A revolution of the constitutional grundnorm is a change of such magnitude that, if led by the judiciary alone, would find it difficult to escape accusations of democratic and historical illegitimacy. Evolution not revolution "Sovereignty of the people" and the republican threads that it encapsulates run too deep in Australia's constitutional history to be dismissed as irrelevant to constitutional interpretation. Finn has speculated that a heightened emphasis upon popular sovereignty will have broad ranging implications for the law, including issues such as the right to reasons in administrative law,184 the relationship between popular sovereignty and sovereignty of indigenous people,18S as well as "sharpening unresolved controversies" in relation to constitutional interpretation.186 However Finn makes clear that a renewed focus upon popular sovereignty and trust "[does] not threaten a radical revolution in the common law. They are evolutions out of the common law".187 In this way "sovereignty of the people" might be regarded as having an influence analogous to Sir Anthony Mason's "sense of Australian unity and identity",188 an awareness of which he attributed to the broader reading of the external affairs power in Koowarta and Tasmanian Dams. 189 Regarded in this way, "sovereignty 182 183 184 185 186 187 188 See also A Fraser, above n 6 at 227. G Lindell, above n 100 at 103. P Finn, above n 19 at 16. Ibid at 18. Ibid at 18-20. Ibid at 15. Sir Anthony Mason, "Trends in Constitutional Interpretation" [1995] UNSWLawJl 13; (1995) 18 UNSWLJ 237 at 242. 189 Ibid at 243. See Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1. 194 Federal Law Review Volume 26 of the people" might have a more persuasive and pervasive influence on interpretation, than that suggested by a "revolution". An important aspect of this article concerned the limits of legal theory. It was argued that, even if sovereignty was assumed to lie unproblematically with the Australian people, such a recognition neither requires nor justifies a radical change in constitutional interpretation. Nor does the observation that parliamentary sovereignty is itself a common law norm justify the judiciary "updating" this norm in order to remove its influence on interpretation. The theoretical linkages are perhaps not as formulaic or pure as some advocates of a new constitutional Grundnorm might like. As Kelsen's broad notion of a Grundnorm suggests, it is futile to rigidly apply principles of legal theory to a complex of legal/ political fact; such an approach is somewhat akin to applying Newtonian principles of physics to an object travelling at close to the speed of light. 190 Legal theory should not be attempting to close constitutional discourse. As the most renowned legal minds have always known, cogency depends upon acknowledging the unknowable. 191 Part of the attractiveness and persistence of Diceyan theory is its open embrace of its limits, its open reliance upon political solutions in the extreme case. It is fitting perhaps, as the "inevitable" republic advances and as the constitutional ties with Britain are severed, "that the men of the Revolution should turn to constitution making". However there are doubts as to the identity of the constitution makers. It should not be the responsibility of the judiciary alone. The revolution lacks just one thing - the consent of the sovereign people. 190 191 Wade has noted that "[t]he closer judges come to constitutional bedrock the more prone to disorientation they seem to be": H R W Wade and C Forsyth, Administrative Law, (7 ed 1994) at vi, cited by Justice Kirby, "The Struggle For Sinlplicity - Lord Cooke and Fundamental Rights", speech delivered at the New Zealand Legal Research Foundation, 45 April 1997 at 59. As Dixon J stated in Melbourne Corporation v Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at 82, "[ilt is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling." In a similarly open characterisation, Sir Anthony Mason has referred to judgment as involving "objective and principled elaboration": A Mason, "The Role of a Constitutional Court in a Federation: a Comparison of the Australian and the United States Experience" (1986) 16 F L Rev 1 at 28.