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Library card |
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Title |
Sovereignty of the People - The New Constitutional Grundnorm? |
Author |
Harley G A Wright |
Journal/conference |
Federal Law Review |
Edition |
Volume 26 No 1 |
Publication date |
1998 |
Abstract |
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| After 1992,
"the year that was" in constitutional law, it
appeared to many that the High Court had adopted a new grundnorm of
constitutional interpretation: "parliamentary sovereignty" was
replaced with "sovereignty of the people". This change was most
marked in the "free speech" cases 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,
others saw these promises as empty and warned that judicial implication of
rights threatened positivist legal values and judicial independence.
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 McGinty 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" and as "a reaffirmation of orthodox principles of Constitutional interpretation". Yet, on the other hand, the unanimous judgment in Lange refused to overrule the most radical of the free speech decisions, Theophanous. 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]". 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". 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. 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. |
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