1. Introduction
Ryan Goss has criticised the long-standing tendency of Australian lawyers to use the terms ‘parliamentary sovereignty’ or ‘parliamentary supremacy’ to describe the nature of the legislative authority of our parliaments.Footnote 1 He objects that, because no Australian parliament has absolute or unlimited authority, these terms are inaccurate and confusing, and obscure the reality of Australian constitutional arrangements, which can be described more accurately by ‘simply citing the text and structure of the Constitution or the relevant legislation’.Footnote 2
At the end of his article, he issues a challenge:
[T]here should be an onus on those who argue [that] parliamentary sovereignty or parliamentary supremacy holds normative force in Australia. What, precisely, do its advocates mean by parliamentary sovereignty — or supremacy — in Australia? If it applies in a qualified or limited form, such that it does not meet much of the orthodox definitions, precisely what part remains? Is the use of these terms necessary or helpful, given the contestation and baggage brought with them? Unless these questions can be answered more persuasively, the terms ought not to be used again to describe Australian constitutional arrangements.Footnote 3
Goss’s article is soundly researched, well written and argued, and his challenge is a stimulating provocation to complacent thinking. It has forced me to question my own assumptions, but not to abandon them. The aim of this reply is to meet his challenge by showing: first, what Australian lawyers mean when they talk about the sovereignty or supremacy of their parliaments; secondly, precisely what aspect of sovereignty or supremacy exists, given the many qualifications and limits to legislative power; and thirdly, why this way of talking is not only useful, but embedded in our constitutional law. I will also show that this kind of talk is not an odd Australian idiosyncrasy; it was adopted by eminent British judges in the late Nineteenth Century, and is used in Canada and even in the United States.
Goss considers and rejects four different possible meanings of this kind of talk. I will defend the fourth meaning, which I will call the traditional conception because it undoubtedly has the longest lineage and is the most plausible. This is that Australian legislatures are sovereign or supreme within the limits to their law-making authority that are imposed by superior constitutional instruments.
Another possible meaning that Goss considers is that sovereignty or supremacy, without any modification or qualification, is a ‘cornerstone’ of the Australian constitutional system.Footnote 4 He concedes that some of the authors he cites as employing this meaning acknowledge elsewhere that parliamentary sovereignty in Australia is modified or limited.Footnote 5 In fact, all of these authors acknowledge this, sometimes on the same page or at least in the same work that he cites.Footnote 6 It is inconceivable that a constitutional lawyer of Leslie Zines’ eminence could ever have regarded parliamentary sovereignty in Australia as unqualified.Footnote 7 It seems clear that, even if the terminology has occasionally been used somewhat loosely, all these authors really hold or held the traditional conception that I will defend.
One query I will raise is just how radical a change to our constitutional self-understanding is at stake. Goss acknowledges that the words ‘sovereign’ and ‘supreme’ have been used ‘to give a familiar label to certain phenomena that may be observed in Australian public law’ – ‘certain key features of Australian constitutionalism’.Footnote 8 Regarding those words as unhelpful and possibly misleading, he proposes that we ‘clear the ground in order to understand Australia’s constitutional foundations more precisely’, by looking no further than the text and structure of our constitutional instruments.Footnote 9 Presumably, he anticipates that the ‘key features’ that he regards as currently mislabelled will survive this exercise. But it is not clear what these key features are, or whether there are other features that might be discarded along with the words, which makes the impact of his proposed clarification uncertain. To put this another way: is he proposing only that we abandon these misleading words, or also that we revise the underlying concept or idea that they have been used to express? If the former, he would presumably accept the use of different words to express the same concept or idea, if suitable ones could be found. If the latter, he is proposing a more extensive change to our traditional understanding of the nature of legislative power in Australia. To be fair, he denies that he is advocating radical change: his article ‘is not an argument for common law constitutionalism, for or against judicial supremacy, or for or against an Australian Bill of Rights’.Footnote 10 But regardless of his own intentions, there is a danger that changing our words might also change the underlying idea or concept they have been used to express. Goss is right that words can confuse or mislead, but that might be more likely if we abruptly discard words that have a meaning we have long been accustomed to.
2. A brief history of the traditional conception
The aim of this section is simple. It is not to provide an account of general theories of sovereignty, or even of parliamentary sovereignty, that developed in Britain and Australia in the Nineteenth and Twentieth Centuries. Because I am responding to Goss, my aim is merely to clarify what Australian lawyers, since the late 1890s, have meant when talking about the sovereignty or supremacy of their Parliaments, and why they came to mean it. The methodology is equally simple, and primarily legal rather than historical: an examination of judgments and legal textbooks, which reveals how this lawyers’ talk and its meaning was inherited from the language and ideas of senior British judges in the late Nineteenth Century, especially in a series of hugely influential judgments of the Judicial Committee of the Privy Council (‘the JCPC’) in the 1870s and 1880s. Their interpretation of the lawmaking powers of various colonial legislatures, which gave rise to the traditional conception, influenced the subsequent drafting of other colonial and dominion constitutions, notably in Australia. Their views were treated by Australian lawyers as authoritative, for two reasons: first, because of the standing of the JCPC in the hierarchy of appellate courts; and secondly, because of the interpretive principle that when a form of words in legislation has been authoritatively interpreted, then the same form of words in subsequently enacted legislation is presumed to have been intended to bear the same meaning. These reasons remain powerful even today.Footnote 11
This story is well known, but Goss’s uncertainty about the meaning of such talk suggests that it bears repeating. His article focuses on the Australian scholarly literature, while promising that future work will examine the reasoning of Imperial and Australian courts.Footnote 12 But that is to put the cart before the horse, because as we will see, the judicial history is essential to properly understanding the scholarly literature. Quotations rather than paraphrases are required.
2.1 The British origins of the traditional conception
In Phillips v Eyre (1870), Willes J (speaking for a bench of seven in Exchequer Chamber) stated that ‘a confirmed act of the local legislature lawfully constituted … has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the [I]mperial [P]arliament …’Footnote 13
In R v Burah (1878) (‘Burah’), Lord Selborne speaking for the JCPC said:
The Indian legislature has powers expressly limited by the Act of the Imperial Parliament which created it … But, when acting within those limits, it … has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.Footnote 14
Since the word ‘sovereign’ was, or very soon became, generally accepted as accurately describing the nature of the Imperial Parliament’s legislative power, Lord Selborne was in effect saying that the Indian legislature possessed, within the limits imposed by its constituent instrument (and, he should have added, some other Imperial Acts), powers that were sovereign in nature. The same opinion was expressed by the JCPC in Hodge v The Queen (1883) (‘Hodge’), which referred to
authority as plenary and ample within the limits prescribed by s 92 [of the British North America Act] as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament …Footnote 15
In Powell v Apollo Candle Co (1885) (‘Powell’), the JCPC expressly followed Burah and Hodge in holding that the legislature of New South Wales was ‘restricted in the area of its powers, but within that area unrestricted.’Footnote 16
The statutory grants of power to the colonial legislatures discussed in Burah and Hodge did not use the constitutional phrase — common even then — conferring power to make laws for the ‘peace, order [or welfare] and good government’ (‘POGG’) of the relevant colony or dominion.Footnote 17 But in Powell that phrase had been used, as it is today in many Australian constitutions and the Australia Acts.Footnote 18 In Riel v R (1885), Lord Halsbury speaking for the JCPC affirmed that this phrase did not impose any legal limit to the legislative power it granted; instead, it was ‘apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to.’Footnote 19 As A B Keith later explained that holding:
The means to these ends [POGG] are entirely for the judgment of the Legislature which enacts; the test is subjective, not objective, and no Court can substitute its views of what should be enacted for those of the Legislature.Footnote 20
The idea that the POGG phrase conveyed plenary or absolute power within constitutional limits became commonplace. In 1933 the JCPC in Croft v Dunphy said:
Once it is found that a particular topic of legislation is among those upon which the Dominion Parliament may competently legislate as being for the peace, order and good government of Canada or as being one of the specific subjects enumerated in s. 91 of the British North America Act, their Lordships see no reason to restrict the permitted scope of such legislation by any other consideration than is applicable to the legislation of a fully Sovereign State.Footnote 21
The JCPC reaffirmed this view in Ibralebbe v R (1964), holding that the words POGG ‘connote, in British constitutional language, the widest law-making powers appropriate to a Sovereign.’Footnote 22
2.2 Adoption of the traditional conception in Australia
This way of conceptualising the law-making powers of colonial and dominion legislatures quickly became orthodox throughout the British Empire.Footnote 23 In Australia, for example, Quick and Garran described the wording in ss 51 and 52 of the Australian Constitution (which includes the POGG formula) as ‘similar in substance and intent to those of the British North America Act’, quoted from Hodge v The Queen, and concluded that the Commonwealth Parliament possessed ‘authority within the limits prescribed by the Constitution [that] are as plenary and ample as the Imperial Parliament in its plenitude possessed and could bestow’,Footnote 24 or in other words, ‘plenary, absolute and quasi-sovereign’.Footnote 25 Similar statements appear in other early texts on Australian constitutional law.Footnote 26
When the question first arose for judicial consideration by the High Court, in D’Emden v Pedder (1904), Griffith CJ said of the POGG formula in s 51 of the Constitution that:
The same, or almost exactly similar, words were used in the Constitutions of the Australian and Canadian Colonies, and it has always been held that under the authority conferred by them the colonial legislatures had within the territory subject to their jurisdiction sovereign authority, absolute and uncontrolled except so far as it was restricted by the Constitution itself. See Powell v. Apollo Candle Co., (1885) 10 App. Cas., 282 … This consideration alone is sufficient to show that the Commonwealth has, with respect to all matters enumerated in the Constitution as within the ambit of its authority, sovereign power, subject only to the limitations already mentioned.Footnote 27
In the Engineers’ case (1920), the majority of four Justices stated that:
The grant of legislative power to the Commonwealth is, under the doctrine of Hodge v The Queen and within the prescribed limits of area and subject matter, the grant of an ‘authority as plenary and as ample … as the Imperial Parliament in the plenitude of its power possessed and could bestow’.Footnote 28
Higgins J agreed with this proposition in a separate judgment.Footnote 29 In 1936, W Anstey Wynes cited the earlier JCPC cases, and many others from Australia, Canada and South Africa, as authority for the proposition that:
In Australia, as in Canada and all the other Dominions, the powers of the Legislature are, within the appointed limits, absolute and supreme; this principle applies to the legislatures of the States as well as to the Commonwealth Parliament.Footnote 30
In Arthur Yates and Co Pty Ltd v The Vegetable Seeds Committee, after quoting the usual passage from Hodge v The Queen, Starke J expressed the point this way:
And whatever laws these [Dominion] legislative bodies choose to pass within the limits of their authority are valid and the motives, reasons and bona fides of such bodies can no more be examined in courts of law than can those of the Imperial Parliament itself (Phillips v Eyre). The only question open in such cases for judicial consideration is whether the legislative enactment is within or without power.Footnote 31
In Nelungaloo Pty Ltd v The Commonwealth (1947), Williams J said:
It is trite law that the powers conferred upon the Commonwealth Parliament by s. 51 of the Constitution are plenary powers of legislation as large and of the same nature as those of the Imperial Parliament itself (R v Burah (1878) 3 App Cas 889 at 904).Footnote 32
In BCE and BLF of NSW v Minister for Industrial Relations (1986) (‘BCE and BLF’),Footnote 33 Street CJ adopted the unorthodox view that the POGG formula in the NSW Constitution imposed substantive limits on the powers of the State Parliament. But it is notable that even he accepted the idea that a State Parliament could possess sovereign law-making power within constitutional limits. After quoting from the JCPC’s judgment in R v Burah, he said:
This is a significant demonstration that a legislature may have ‘plenary powers of legislation, as large, and of the same nature, as those of Parliament itself’ (i.e. the English Parliament) but may at the same time be subject to ‘limits which circumscribe these powers’. This, in my view, is the position in which the New South Wales Parliament stands. It has plenary or sovereign powers. But they are circumscribed or limited by the requirement of ‘the peace, welfare, and good government of New South Wales’.Footnote 34
In Union Steamship Co v King (1988) (‘Union Steamship’), a unanimous High Court quoted from most of the JCPC cases previous cited (Burah, Hodge, Powell, Riel and Ibralebbe), in rejecting Street CJ’s interpretation of the POGG formula:
These decisions and statements of high authority demonstrate that, within the limits of the grant, a power to make laws for the peace, order and good government of a territory is as ample and plenary as the power possessed by the Imperial Parliament itself. That is, the words ‘for the peace, order and good government’ are not words of limitation. They did not confer on the courts of a Colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony.Footnote 35
The Court added a reservation, which is yet to be authoritatively resolved, questioning whether state legislative power ‘is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law.’Footnote 36 Since then an ‘implied freedom’ (rather than an individual right) of political communication has been inferred from the democratic system of government established by the Constitution.Footnote 37 That is consistent with the traditional understanding of the POGG formula, but free-standing common law rights immune from legislative interference would not be. That traditional understanding has been accepted as authoritative in almost all the textbooks.Footnote 38
In Kartinyeri v The Commonwealth (1998), Brennan CJ and McHugh J reaffirmed that:
The legislative powers conferred on the Parliament by s 51 of the Constitution are plenary powers, that is to say, ‘subject to’ any prohibition or limitation contained in the Constitution, the Parliament can ‘make laws with respect to’ the several subject matters contained in s 51 in such terms, with such qualifications and with such limitations as it chooses.Footnote 39
They then went even further, describing the Commonwealth Parliament’s power ‘to make laws’, using quotations from Sir Edward Coke and Sir William Blackstone, as ‘so transcendent and absolute, as it cannot be confined either for causes or persons within any bounds’, and as ‘sovereign and uncontrollable’ (within constitutional limits, of course).Footnote 40
2.3 Challenges to the traditional conception
There have been very few dissenting views. Justice Lionel Murphy once suggested in an off-hand way that the POGG phrase in ss 51 and 52 of the Commonwealth Constitution imposed substantive limits on Parliament’s powers.Footnote 41 Chief Justice Sir Laurence Street provided a more considered defence of the same view, in relation to s 5 of the Constitution Act (NSW), in the BCE and BLF case (1986).Footnote 42 Ian Killey, in a journal article, argued that the phrase constitutes a general limitation on legislative competence that serves to protect human and democratic rights.Footnote 43 More recently, Hakeem O Yusuf devoted an entire book to advocating the same proposition.Footnote 44
But these scholarly analyses are dubious. Killey could make no sense of the idea that the POGG phrase ‘operate[s] as no more than a suggestion … as to the ends to which exercises of power should aim … no more than an expression of a gratuitous sentiment’, because that would require ‘the creation of a specific exception to the principle of drafting requiring the avoidance of surplus words.’Footnote 45 But surely we are familiar with the mention in written constitutions of norms that are too vague, subjective, aspirational and contestable to be judicially enforceable. Today, we sometimes say that they are legal but ‘non-justiciable’, whereas in the 19th Century, the JCPC took the view that such norms did not impose legal requirements of any kind. That was probably due to a contemporaneous understanding of ‘law’ as those norms that are enforceable by courts; Dicey, for example, defined ‘a law’ as ‘any rule which will be enforced by the courts’.Footnote 46 Even in recent times, some legal philosophers including Ronald Dworkin have treated the availability of a judicial remedy as essential to ‘law’.Footnote 47
Yusuf rejects the orthodox historical account of the original meaning of POGG. Drawing on his own detailed examination of historical sources, he argues that this account ‘is more assumed than real and [was] mistaken from the start … Rather, the intention of the initial drafters of POGG was the plain literal meaning of those words, not a ‘stock phrase’ or ‘term of art’ [denoting plenary power] progressively ascribed to it.’Footnote 48 But at least three obstacles stand in the way of Yusuf’s thesis being acceptable in Australia.
First, his historical analysis is questionable. As Lord Hope states in the introduction to Yusuf’s book, ‘[i]n practice … the powers of the colonial legislatures were as ample and unchallengeable as those of the Parliament by which the powers were conferred. It is hard not to believe that this was indeed the intention of those in charge of the colonial office at that time, whose instructions the draftsman was seeking to express when he chose those fine words.’Footnote 49
Secondly, the relevant question in Australia is not what the POGG or equivalent phrases were intended to mean when they were first used in earlier colonial constitutions, but what they were understood to mean when they were most recently enacted or re-enacted here. As Griffith CJ stated in D’Emden v Pedder, with the POGG formula in mind,
when a particular form of legislative enactment which has received authoritative interpretation, whether by judicial decision or by a long course of practice, is adopted in the framing of a later Statute, it is a sound rule of construction to hold that the words so adopted were intended by the legislature to bear the meaning which has been so put upon them.Footnote 50
So the relevant legislative intentions here are those in 1900 (when the Australian Constitution was enacted), 1902 (when the NSW Constitution was re-enacted), 1986 (when the Australia Acts were enacted), and so on for other state constitutions. Yusuf acknowledges that in R v Burah, when the JCPC adopted what he deems an erroneous interpretation of the POGG formula, it ‘set off the chain of references which crystallised the interpretation into what we now have as the orthodox interpretation.’Footnote 51 For Australian purposes, that is the crucial point: the process of crystallisation was completed well before the POGG formula or its equivalents were enacted or most recently re-enacted in our constitutional instruments.
Thirdly, the long history of judicial reaffirmations of the orthodox interpretation makes the principle of stare decisis an almost unsurmountable obstacle to the opposite interpretation now being adopted. As Yusuf acknowledges, the POGG formula ‘has had a largely uncontested meaning in the Australian jurisdiction’,Footnote 52 and ‘caught as it presently is in the mechanics of common law tradition, it would take something of a judicial and academic revolution for POGG to be interpreted’ along the lines he advocates.Footnote 53 Such a judicial revolution is both undesirable, for the usual reasons of legal certainty and stability, and also therefore very unlikely at this late stage in Australia’s constitutional development.Footnote 54 That is why the traditional conception is embedded in our constitutional law.
3. Other examples of limited sovereignty or supremacy
This section will show that the idea of legislative powers being sovereign or supreme within limits imposed by a superior law or laws is far from an odd, idiosyncratic Australian confusion. If Australian lawyers are confused about the nature of the powers of their legislatures, so too are constitutional lawyers in Canada and the United States. This is relevant to our enquiry for two reasons. First, it helps dispose of another possible meaning of Australian legislative sovereignty or supremacy that Goss considers, but rejects on other grounds: that it embodies a peculiarly Australian notion.Footnote 55 Secondly, the more widely an alleged confusion is shared, at least among experts about the subject-matter in question, the less likely it is to be a confusion.
3.1 The traditional conception in Canada
The traditional conception has long been and continues to be endorsed by the Supreme Court of Canada, even though — due to the Charter of Rights and Freedoms — Canadian parliaments are subject to more constitutional limitations than ours are.Footnote 56 That is unsurprising, given that Canadian lawyers have drawn on the same JCPC precedents, several of which decided appeals from their courts. As recently as 2018, the Supreme Court observed that:
Parliamentary sovereignty is a foundational principle of the Westminster model of government, and it is based on a recognition that the legislature’s power to make laws exists without any legal limits or constraints … While the principle of parliamentary sovereignty is an equally important feature of Canadian law, various aspects of our written Constitution have qualified the basic Diceyan rule that Parliament has the power ‘to make or unmake any law whatever’. One such qualification lies in the federal structure of the Canadian state, which restricts the subject matters over which each legislature has jurisdiction … [As] was explained by the Judicial Committee of the Privy Council in Hodge v The Queen (1883), 9 App Cas 117 (PC) … the effect of parliamentary sovereignty in the context of Canadian federalism is that Parliament and the provincial legislatures are supreme with respect only to matters that fall within their respective spheres of jurisdiction. Further limits were placed upon parliamentary sovereignty in Canada following the enactment of the Constitution Act, 1982, a constitutional document which (among other things) protects the various civil rights and freedoms enshrined in the Canadian Charter of Rights and Freedoms (ss 1 to 34) … [i]n Reference re Secession of Quebec, [1998] 2 SCR 217, this Court observed that, ‘with the adoption of the Charter, the Canadian system of government was transformed to a significant extent from a system of parliamentary supremacy to one of constitutional supremacy’ (para 72). This is of course true, insofar as the Constitution places limits on the law-making powers of Parliament and the provincial legislatures. However, the principle of parliamentary sovereignty remains foundational to the structure of the Canadian state: aside from these constitutional limits, the legislative branch of government remains supreme over both the judiciary and the executive’.Footnote 57
This was a restatement of long-established orthodoxy: three years earlier, the distinguished public lawyer Jeremy Webber had made all these points in his monograph on the Canadian Constitution.Footnote 58 Indeed, the Canadian Supreme Court uses the term ‘parliamentary sovereignty’ to describe the law-making power of its legislatures much more often than does our High Court.Footnote 59 One consequence of this limited parliamentary sovereignty or supremacy was emphasised by the JCPC in 1912:
A Court of law has nothing to do with a Canadian Act of Parliament, lawfully passed, except to give it effect according to its tenor … So far as it is a matter of wisdom or policy, it is for the determination of the Parliament … It cannot be too strongly put that with the wisdom or policy of an Act, lawfully passed, no Court has a word to say.Footnote 60
As the JCPC had said fourteen years earlier:
The supreme legislative power in relation to any subject-matter is always capable of abuse, but it is not to be assumed that it will be improperly used; if it is, the only remedy is an appeal to those by whom the Legislature is elected.Footnote 61
We will shortly encounter similar statements made by the Supreme Court of the United States, and by the High Court of Australia.Footnote 62
3.2 Legislative supremacy in the United States
In arguing that Australians do not need the terminology of legislative sovereignty or supremacy, because our written constitutions provide everything needed to define the scope of legislative power, Goss suggests that the American constitutional system provides a better model for us than Britain’s.Footnote 63 But a conception of legislative supremacy that is remarkably similar if not identical to ours has widespread currency in the United States. Of course, American legislatures, like ours, are not fully sovereign, because they do not possess legally unlimited legislative authority. But they are also like ours in that their authority is limited only by their national and state constitutions. Judges there have no authority to hold a statute void except on the ground that it violates a constitutional requirement. In Calder v Bull (1798), when Justice Chase suggested that American courts might have authority to hold statutes void for violating extra-constitutional principles, Justice Iredell strongly disagreed.Footnote 64 As a leading constitutional law treatise explains: ‘In form, the Supreme Court has adopted the views of Justice Iredell …’Footnote 65 ‘[T]he philosophy that the Justices would overturn acts of other branches only to protect specific constitutional guarantees has been the formal guideline of the Supreme Court at every stage in its history.’Footnote 66
The great Chief Justice John Marshall said in Gibbons v Ogden that the commerce power ‘like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution’, and added that ‘the sovereignty of Congress, though limited to specified objects, is plenary as to those objects’.Footnote 67 Chancellor James Kent later wrote in his Commentaries on American Law that ‘the principle in the English government, that the parliament is omnipotent, does not prevail in the United States; though, if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power, under any other form of government.’Footnote 68 After summarizing the British doctrine of parliamentary sovereignty, Roscoe Pound added: ‘Except as constitutional limitations are infringed, the same doctrine obtains in America.’Footnote 69
Many Supreme Court dicta verify that proposition, by insisting that provided a statute is constitutionally valid, its wisdom, reasonableness and justice are for Congress to determine, not the courts.Footnote 70 In 1983, the Supreme Court re-affirmed that a statute’s ‘wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained.’Footnote 71 Even Douglas Edlin — a forthright critic of this doctrine of legislative supremacy — concedes that ‘[a]lmost all American judges’ accept it.Footnote 72 As Kent Greenawalt explains, ‘[a] constitutional marking of some domains as off limits represents a conscious choice to leave remaining domains to legislative authority.’Footnote 73 That is why, according to Robert Summers:
[American] constitutional law provides that, in matters of valid legislation, the legislature is supreme. That is, the legislature’s meaning is supposed to control, not the substantive political views of the judiciary. This principle of legislative supremacy is expressly or implicitly embedded in the federal and state constitutions.Footnote 74
We will see later that American lawyers commonly talk about ‘legislative supremacy’, especially when discussing statutory interpretation.Footnote 75 Are they too mired in confusion?
3.3 The European Union
According to Professor Daniel Philpott, in his entry on ‘Sovereignty’ in the online Stanford Encyclopedia of Philosophy, the core meaning of sovereignty is ‘supreme authority within a territory’, and its ‘historical variants can be understood along three dimensions — the holder of sovereignty, the absoluteness of sovereignty, and the internal and external dimensions of sovereignty.’ Footnote 76 As to the second dimension, he says:
Sovereignty can also be absolute or non-absolute. How is it possible that sovereignty might be non-absolute if it is also supreme? … But here, absoluteness refers not to the extent or character of sovereignty, which must always be supreme, but rather to the scope of matters over which a holder of authority is sovereign. Bodin and Hobbes envisioned sovereignty as absolute, extending to all matters within the territory, unconditionally. [But, i]t is possible for an authority to be sovereign over some matters within a territory, but not all. Today, many European Union (EU) member states exhibit non-absoluteness. They are sovereign in governing defense, but not in governing their currencies, trade policies, and many social welfare policies, which they administer in cooperation with EU authorities as set forth in EU law.Footnote 77
This analysis of sovereignty in the European Union is, of course, debatable.Footnote 78 But my point is merely that it is conceivable: sovereignty within limits is not ruled out by the very meaning of ‘sovereignty’.
4. Is the idea of limited sovereignty or supremacy incoherent or confusing?
4.1 The charge of incoherence: unlimited power cannot be limited
Goss finds it incoherent, or at least perilously confusing, to say that a legislature can possess sovereignty or supremacy within constitutional limits. It is incoherent because ‘sovereignty’ means (roughly) unlimited authority, which simply cannot co-exist with constitutional limits. In short, an unlimited power by definition cannot be subject to limits.Footnote 79 Ditto for talk about ‘supremacy’.Footnote 80
Goss’s claim that sovereignty means unlimited authority is, at the very least, debatable. As we have seen, Professor Philpott regards the core meaning of sovereignty as ‘supreme authority within a territory’, while its ‘absoluteness’ is a variable dimension, so that authority can be supreme and therefore sovereign, but not absolute.Footnote 81
Is this really incoherent, or even confusing? Is it not a commonplace to say that, except for certain specific requirements or limits, some person or body has full discretion? One of the best accounts of the traditional view is given by Greg Taylor in The Constitution of Victoria.Footnote 82 After acknowledging the constitutional limits to the powers of all the Australian Parliaments, he explains that:
within the quantitative limits of the powers conferred on, or withdrawn from, it by the terms of its grant and (more particularly in the case of the States) by later overriding statutes such as the federal Constitution, each Australian Parliament’s power has traditionally been considered the same in sovereign quality as that of the Imperial Parliament.Footnote 83
In the same vein, we could borrow George Winterton’s well known distinction between the breadth and the depth of a power, which he used to illuminate the extent of the Commonwealth’s executive power.Footnote 84 Australian Parliaments, we might say, are limited as to the breadth, but unlimited as to the depth, of their law-making powers. One could quibble with this terminology, but the thrust of the distinction is clear enough.
Taylor goes on to quote Sir W Ivor Jennings’ statement that:
in modern constitutional law it is frequently said that a legislature is ‘sovereign within its powers’. This is, of course, pure nonsense if sovereignty is supreme power, for there are no ‘powers’ of a sovereign body; there is only the unlimited power which sovereignty implies. But if sovereignty is merely a legal phrase for legal authority to pass any sorts of laws, it is not entirely ridiculous to say that a legislature is sovereign in respect of certain subjects, for it may then pass any sort of laws on those subjects, but not on any other subjects.Footnote 85
It is important to appreciate that words such as ‘sovereign’ or ‘supreme’ are used to express something positive, and not merely negative, about the nature of the legislative power in question. It is not merely that, apart from existing constitutional limits, there are - currently - no other limits. It is also that no other limits can lawfully be imposed on the power, except by addition to whatever superior constitutional instruments control it. In other words, the legislative power is constitutionally superior to other forms or sources of law such as the common law expounded by judges. As Lord Selborne also said in R v Burah,
The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so is by looking to the terms of the instrument by which affirmatively the legislative powers were created, and by which negatively they are restricted. If what was done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would of course be included any Act of the Imperial Parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions.Footnote 86
This is too narrow if it excludes genuinely implied conditions or restrictions. But otherwise the point is sound, and can be put in more specific terms: the legislative authority of Australian Parliaments is not and cannot be constrained by extra-constitutional norms, such as moral norms, natural law (if it exists), international law, or common law principles no matter how fundamental they may be.Footnote 87 Nor may such norms be smuggled into the constitution speciously disguised as ‘implications’.Footnote 88 As in Canada and the United States, our judges have often asserted that the wisdom and justice of a statute are for the Parliament to determine, not the courts.Footnote 89 For example, in the Communist Party case, Fullagar J said that ‘nothing depends on the justice or injustice of the law in question. If the language of an Act of Parliament is clear, its merits and demerits are alike beside the point. It is the law, and that is all.’Footnote 90 All of the above is what it means to say that, as long as no question of constitutional invalidity arises, the validity and content of statutes is governed by the principle of parliamentary sovereignty in much the same way as in Britain.
Subject to what I will say in section 4.5, to assert that the principle of legislative supremacy or sovereignty is part of Australian constitutional law seems to me unobjectionable, provided that it is understood in this sense. Hence, Dawson J was justified in stating that ‘there can be no doubt that parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.’Footnote 91 That is why parliamentary supremacy is sometimes listed in textbooks as one of the basic principles or concepts of Australian Constitutional Law.Footnote 92
4.2 The charge of confusion: British baggage
Goss suggests that using the term ‘parliamentary sovereignty’ may be confusing because of the ‘contestation and baggage’ that comes with it, referring to controversies about the doctrine and its legal operation that have lately been debated in Britain and elsewhere in the British Commonwealth.Footnote 93 Given that the traditional conception has been a feature of our constitutional law for well over a century, it should be possible by now to provide examples of the problematic baggage, but Goss does not do so.
Paradoxically, many of the controversies in Britain may be irrelevant here, because they have arisen long after our constitutional instruments were enacted or re-enacted. For example, the theory of common law constitutionalism - which maintains that legislative authority is subordinate to and limited by fundamental common law principles - was regarded as defunct in the Eighteenth, Nineteenth and most of the Twentieth Century, only to be revived in Britain in the 1980s. If the idea of parliamentary sovereignty within limits, as it was understood in 1900, informs or is incorporated in the POGG formula in ss 51 and 52 of the Constitution, then that understanding is entrenched and unaffected by criticisms of the broader doctrine made in Britain since the 1970s.Footnote 94 That is one advantage, or some might say disadvantage, of a written constitution that can be amended only by a special procedure, and not merely by some of its content becoming unfashionable.
Goss also worries that talk about Australian parliamentary sovereignty or supremacy might confuse or mislead participants in contemporary debates about issues such as popular sovereignty, deference, the relationship between the different branches of government, and possible legal and constitutional reforms such as a First Nations’ Voice and the protection of human rights.Footnote 95 He provides no evidence of this, and acknowledges that it is not the focus of his article.Footnote 96 But if the traditional conception is accurate – as I have argued it is – then such talk cannot be misleading, unless it is negligently misunderstood.
Will Partlett agrees with Goss that talk of parliamentary sovereignty has helped to obscure and detract from the role of popular sovereignty in Australia.Footnote 97 He raises issues that will be examined in the next two sub-sections.
4.3 Popular sovereignty as political sovereignty
In assessing the plausibility of limited sovereignty or supremacy in law-making, a basic error must be avoided. This is to assume that the word ‘sovereignty’ refers to a particular phenomenon, existing in the realm of statehood, politics and law, which political theorists, legal philosophers, international lawyers and constitutional lawyers are all striving to identify and accurately describe. On this mistaken view, if (for example) a political theorist regards sovereignty as vested in ‘the people’, but a lawyer attributes it to Parliament, then one of them must be wrong, because there can only be one bearer of true sovereignty in any state. This is mistaken because the word ‘sovereignty’ has come to be used in many different ways, and for many different purposes, both descriptive and normative, which may be perfectly consistent with one another.
An example of this error can be found in a recent article by Martin Loughlin and Stephen Tierney.Footnote 98 They argue that there is something called ‘sovereignty’, possessed by modern nation-states, that British constitutional lawyers have misunderstood and mistakenly attributed to Parliament; the doctrine of parliamentary sovereignty is therefore erected on a ‘skewed sense of what sovereignty entails’.Footnote 99 But as I have shown elsewhere, British constitutional lawyers use the term ‘sovereignty’ in their own special legal sense, which does not purport to encapsulate whatever political theorists such as Loughlin mean when they use the term.Footnote 100 Dicey was careful to define Parliament’s legislative sovereignty in a specific and narrow sense that expressed the ‘legal point of view’.Footnote 101 ‘Sovereignty’ thus defined was ‘a merely legal conception’ that meant ‘neither more nor less’ than the legal right to make any law whatever, without any other person or body having the legal right to set aside such a law.Footnote 102 He acknowledged that this had to be distinguished from use of the same word ‘in a political rather than in a strictly legal sense’ that was ‘fully as important as the legal sense or more so’.Footnote 103 ‘Political sovereignty’ belonged to the electorate, ‘or (to use popular though not quite accurate language) the nation’, although the courts could take no notice of that political fact.Footnote 104 Dicey was here referring to what is commonly called popular sovereignty: the sovereignty of the people.
Full parliamentary sovereignty and popular sovereignty cannot co-exist if a constitution gives direct legal operation to the latter principle, by mandating that certain laws may be enacted only by or with the consent of the people, or by empowering the people through initiative and referendum procedures to bypass or override the legislature. On the other hand, if parliamentary sovereignty and popular sovereignty operate in different domains – the legal, and the moral/political respectively – then they can happily co-exist.Footnote 105 Parliamentary sovereignty concerns legal authority to legislate: in Britain, legally unlimited authority to enact whatever legislation Parliament chooses, or in other words, authority that is not subject to any judicially enforceable limits.Footnote 106 Popular sovereignty in the moral/political realm concerns the ultimate source of governmental legitimacy – of moral or political authority to govern, including to legislate – which it identifies as ‘the people’.Footnote 107 With respect to legislation, parliamentary sovereignty concerns its legal validity, while popular sovereignty concerns its moral/political authority due to Parliament representing the people. They operate in different domains because they have different sources. Parliamentary sovereignty is part of a fundamental norm of the domestic legal system - the ‘rule of recognition’ – whereas popular sovereignty is a norm of political morality.Footnote 108 It is possible for Parliament to possess unlimited legal authority to legislate, and to derive its moral and political authority to do so from the will of the people expressed in regular elections. Conversely, it is possible for the people to be the source of moral and political authority to govern, including to legislate, without themselves possessing any legal authority to legislate.
Ben Saunders and Simon Kennedy have published an excellent article on Australian thinking about popular sovereignty when the Commonwealth Constitution was founded.Footnote 109 They show that the founders were committed to the idea that moral/political authority derives ultimately from the people, and attempted to give practical effect to that idea, both in the one-off ‘constitutive’ process by which the Constitution was first adopted, and in designing the on-going ‘political’ process by which ordinary laws were to be made thereafter.Footnote 110 They rightly conclude that the founders were also committed to the idea, which had come to prevail in Britain by the end of the Nineteenth Century, that parliamentary sovereignty was compatible with popular sovereignty. This is because the founders held the Diceyan conception of popular sovereignty, as a matter of political rather than legal sovereignty.Footnote 111
4.4 Popular sovereignty as legal sovereignty
Will Partlett acknowledges that Diceyan theory can reconcile parliamentary sovereignty with political sovereignty possessed by the people.Footnote 112 But he insists that s 128 of the Constitution confers on the Australian people legal, and not merely political, sovereignty to amend the Constitution. Section 128 ‘gave the Australian people — and not Parliament — the constituent power of “altering”’ the Constitution.’Footnote 113 The people possess ‘legal sovereignty to alter constitutional law outside of Parliament but … in a cooperative process regulated by ordinary law and institutions.’Footnote 114 He also maintains that this truth has been obscured by the doctrine of parliamentary sovereignty.
Section 128 of the Constitution … fundamentally breaks with the ‘monism’ of Diceyan parliamentary sovereignty which makes Parliament the key institution for constitutional change. Australia’s system of constituent power therefore is such a significant modification of Diceyan parliamentary sovereignty that it [parliamentary sovereignty] produces a ‘misleading sense’ of the actual role of the Australian people in their constitutional order. [T]he assumptions about popular involvement which accompany parliamentary sovereignty have helped to undermine the ability of Australian people to alter their constitutional order.Footnote 115
But Partlett’s attribution of legal sovereignty to the people is clearly an overstatement. Their role in amending the Constitution is to accept or reject proposals that must first be passed by an absolute majority of the members in each of the two Houses of the Commonwealth Parliament, or if the Houses are deadlocked, an absolute majority in one of them. (The paragraph dealing with deadlocks is plainly modelled on s 57 of the Constitution, which allows for ordinary statutes to be enacted in certain circumstances without the assent of the Senate). The proposal must then be submitted to the electors for their approval, but they have no legal power to initiate or formulate proposals for amendment, or unilaterally enact them. Indeed, they have no unilateral power to make laws of any kind. It may be significant that s 128 refers to the Houses of Parliament ‘passing’ a proposed amending law, and then the electors ‘approving’ it. Clearly the Houses do not merely propose amendments that the people can then pass into law. Passage by one or both Houses, and approval by the requisite majorities of the electors, are both part of the only ‘manner’ by which amendments can be made. Moreover, that a national majority of electors approves a constitutional amendment is insufficient for it to become law; a majority of electors in a majority of states is also necessary. In addition, an amendment changing any State’s boundaries, or its representation in either House of Parliament, can become law only with the approval of the electors of that State.
Therefore, even if the power of constitutional amendment, by itself, deserves to be called ‘legal sovereignty’, it does not belong solely to the people of the nation. It is shared by the Houses of Parliament (or at least one of them), the peoples of the various states considered separately (and, in some cases, the people of a particular State), and the people of the nation collectively.Footnote 116 The lawmaker empowered to amend the Constitution is a composite and variable body, whose constituent elements depend on the circumstances but usually consist of both Houses of Parliament and the requisite double majority of electors. This is because, as Harrison Moore observed more than a century ago, s 128 reflects three constitutional principles: parliamentary government, federalism and democracy.Footnote 117 Geoffrey Sawer concluded that the ‘ultimate source of Australian sovereignty’ is ‘[t]he Commonwealth Parliament acting with the approval of the people expressed at referenda by the majorities specified in sec. 128.’Footnote 118 Despite their direct participation in the legal process of constitutional amendment, the people - by themselves - can accurately be described as possessing sovereignty only in a rather vague, political sense of the term.Footnote 119
Partlett might reply that even if the sovereign power of constitutional amendment is shared by Parliament (or one House thereof) and the people (acting in a dual capacity as the people of the nation and the peoples of the states), that is still inconsistent with and obscured by continued talk of parliamentary sovereignty. His main point is that s 128 is inconsistent with omnicompetent parliamentary sovereignty of the kind that Dicey attributed to the British Parliament, which is certainly true. Partlett is right to say that s 128 established an entirely different method of constitutional change compared with the method used in Britain.Footnote 120 A different method was necessary to protect the federal system from being changed unilaterally by the national Parliament. Moreover, the Constitution was to be enacted only after being approved in referendums held in each colony, and the founders agreed that it should not be changed without a nation-wide referendum. But no one has ever thought otherwise, and Partlett offers no evidence that Australian lawyers’ attribution to their Parliaments of legislative sovereignty or supremacy, within constitutional limits, has ever confused anyone about the process of constitutional amendment. The most obvious of the many limits on parliamentary sovereignty here is precisely that no Australian Parliament or combination of Parliaments has ever had power to amend the Constitution, and the theoretical power of the British Parliament to do so (which, had it been exercised, would have violated constitutional convention) was terminated by the Australia Act in 1986.Footnote 121 After reviewing this article, an anonymous referee who strongly endorsed Partlett’s views attempted to distinguish the American position from the Australian one:
When Americans use the term ‘legislative supremacy’, they are clearly operating against a set of background assumptions that refer to the power of the legislature to make ordinary law (and not making any claim that ‘the legislature’ is supreme over all forms of lawmaking, including constitutional lawmaking).Footnote 122
But I am attributing precisely the same assumptions to Australian lawyers when they talk about parliamentary ‘sovereignty’ or ‘supremacy’ here. It is obvious that they are neither asserting nor implying that the Commonwealth Parliament has power to change the Constitution.
Partlett regrets that the process by which constitutional amendments have been formulated and proposed has been dominated by political parties acting through normal parliamentary processes.Footnote 123 He claims that ‘the brooding omnipresence of Diceyan parliamentary sovereignty and its monist assumptions have led most constitutional lawmaking processes to be dominated by Parliament and the party that forms the government.’Footnote 124 But surely this is simply the natural consequence of the way that s 128 itself structures the amendment process, requiring that proposed laws for amendment be passed by one or both Houses of Parliament before being submitted to the electors for their approval. For that reason, the process that has been followed does not by itself constitute evidence that lawyers’ talk about parliamentary sovereignty within constitutional limits is partly to blame. Moreover, Partlett’s proposed remedy - legislation to establish an extra-parliamentary body of citizen representatives to consider and propose amendments - is itself wholly dependent on Parliament.Footnote 125
Finally, there is no inconsistency between calling the power of constitutional amendment ‘legal sovereignty’, if one chooses to do so, and referring to Parliament’s ordinary powers of law-making as sovereign or supreme within constitutional limits. The power of constitutional amendment, and the legislative powers of Parliament, are all limited and do not contradict one another. Partlett offers no good reason to think that the word ‘sovereignty’ can properly be applied only to the power to amend the Constitution. He is apparently influenced by theories that have equated sovereignty – and in particular, popular sovereignty - with ‘constituent power’ to establish or change a constitution.Footnote 126 But as previously noted, the word ‘sovereignty’ has different meanings, or at least different connotations, in different contexts.Footnote 127 As used by lawyers in Australia and Canada, with respect to ordinary legislative powers, it connotes freedom from judicially enforceable limits other than constitutional ones. As used by Partlett, with respect to the power of constitutional amendment, it presumably connotes the fundamental nature of the power and its supremacy over (its potential to alter or control) all other aspects of law and governance. The use of the word in neither context tends to contradict or obscure its meaning or primary connotation in the other context.Footnote 128 No significant risk of confusion is apparent.
4.5 Questions of terminology: how should we express the traditional conception?
Even if there were a risk of confusion between use of the word ‘sovereign’ to describe the nature of legislative powers, and its use to describe the power of constitutional amendment, the term ‘supremacy’ could be employed for the former purpose instead. According to Loughlin and Tierney, Dicey used ‘sovereignty’ and ‘supremacy’ interchangeably.Footnote 129
Nearly thirty years ago, David Kinley argued — like Goss — that because sovereign power is by definition unlimited, it is self-contradictory to attribute limited sovereignty to Australian Parliaments.Footnote 130 On the other hand, he thought it accurate to attribute supremacy — within limits — to our Parliaments:
To possess legislative sovereignty (or, as Dicey and others sometimes prefer, absolute legislative supremacy), a Parliament is subject to no legal limitations in its exercise of that power. A Parliament, on the other hand, which is said to possess legislative supremacy (that is something less than absolute legislative supremacy) is guaranteed only a superior claim against any other body claiming legislative competence, and not necessarily that in its exercise of legislative power it is not subject to any legal limitations. Accordingly, the extent of the legislative competence exercised by any of Australia’s Parliaments can only be characterised as ‘supreme’ and under no circumstances as ‘sovereign’.Footnote 131
I disagree that it is self-contradictory to talk about sovereignty within constitutional limits. But I concede that as constitutional limits increase in number and magnitude, a point must be reached where the legislature’s powers are so limited that it would seem odd to continue to use that term.Footnote 132 For example, pace Street CJ in the BCE and BLF case, it might seem odd to describe as sovereign a State Parliament constrained by judicially enforceable requirements as ubiquitous, vague and contestable as ‘peace, order and good government’.Footnote 133 Such requirements are arguably so pervasive and intrusive that the term sovereignty might seem inapt. It can be argued that it is similarly inapt in the case of the Commonwealth Parliament, with powers only with respect to particular subject-matters and subject to many constraints, compared with the old colonial legislatures that had omnicompetent legislative power within their territories subject to very few limits. The term ‘parliamentary supremacy’, understood in Kinley’s sense, might therefore be more broadly acceptable. This view is taken by Luke Beck, who argues that because Australian Parliaments are not fully sovereign, ‘the expression “parliamentary supremacy” is usually used in Australia.’Footnote 134 As explained in section 3.2, this is also the standard terminology used in the United States.Footnote 135 On the other hand, Canadian Parliaments are subject to more limits than are ours, due to the Charter of Rights and Freedoms, but it has not struck the Canadian Supreme Court that it is no longer fitting to attribute parliamentary sovereignty, within those limits, to them.
Goss regards the words ‘sovereignty’ and ‘supremacy’ as interchangeable, in this context, and therefore equally unacceptable. But he relies on definitions of ‘supremacy’ that differ from Kinley’s.Footnote 136 Moreover, if neither word is acceptable, what other word could be used to express the perfectly coherent idea that, within constitutional limits, a legislature’s exercise of its lawmaking power is not and cannot be made subject to judicial review on any ground (except by valid constitutional amendment or legitimate constitutional interpretation)? The onus is on Goss to suggest an alternative terminology that can more accurately convey this idea. Presumably he would also exclude use of the word ‘absolute’, which is usually defined as ‘complete, unrestricted or unlimited’, and the word ‘plenary’, which generally means ‘entire, absolute or unqualified’. On his view, their use would be just as self-contradictory or confusing. But what other words are available?
He suggests that Australian constitutional arrangements can be more clearly described ‘by simply citing the text and structure of the Constitution or the relevant legislation’, without recourse to the notion of legislative sovereignty or supremacy.Footnote 137 The problem is that the relevant constitutional texts themselves use phrases, especially POGG, that for one and a half centuries have been commonly understood to have a meaning that he recommends be purged from our thought. If we discard words such as ‘sovereign’, ‘supreme’, ‘plenary’ and ‘absolute’, then what do we make of those phrases? Relying simply on the text, whose literal meaning contradicts its long-standing judicial interpretation, would then be hazardous. This raises a question I flagged at the outset. Goss wants ‘to look behind the language of parliamentary sovereignty to determine what lies beneath.’Footnote 138 Well, what lies beneath is the idea that I have called ‘the traditional conception’. Is it just a matter of adopting clearer language to express that conception, or would Goss modify or reject the conception itself, and all the judicial authority that has endorsed it? Does he reject not only the words ‘sovereignty’ and ‘supremacy’, but also the idea that laws made by Australian parliaments, consistently with all relevant constitutional limits, are not and cannot lawfully be made subject to judicial review for infringing extra-constitutional norms of common law, equity, morality, international law and so on?
5. Is the traditional conception useful?
Another question posed by Goss is whether the traditional conception, of sovereignty or supremacy within constitutional limits, serves any useful purpose.Footnote 139
The JCPC’s reasoning in Burah, Hodge and Powell was central to its rejection of the proposition that colonial legislatures were merely delegates of the Imperial Parliament, and therefore subject to the well-established presumption that a delegate may not delegate its authority to some other person or body. More broadly, it has been argued that the JCPC’s generous approach to the authority of those legislatures helped advance their autonomy and independence. As Keven Booker pointed out, Dicey likened colonial legislatures to railway companies and municipal corporations, whose rules could be invalidated if deemed unreasonable, but ‘the wisdom of the original rulings’ of the JCPC ‘proved to be more enduring and fruitful.’Footnote 140 Sir Gerard Brennan praised those rulings for providing ‘the legal guarantee of the substantial political independence of the Australian Colonies and of the Commonwealth itself … [which] avoided the frustrations and sense of oppression which had alienated the American colonies in the eighteenth century.’Footnote 141 In terms of utility, that was a good start.
The very similar American doctrine of legislative supremacy (within constitutional limits) was crucial to the repudiation of suggestions that the legislative power of Congress was subject not only to limits imposed by the written Constitution, but also to extra-constitutional principles such as those of natural law.Footnote 142 It also helped persuade jurists to reject fanciful theories of constitutional interpretation; as Thomas Cooley wrote, ‘a statute cannot be declared void because opposed to a supposed general intent or spirit which it is thought pervades or lies concealed in the Constitution, but [is] wholly unexpressed, or because, in the opinion of the court, it violates fundamental rights or principles.’Footnote 143
In Australia, the idea of legislative supremacy within constitutional limits has played a similar role in resisting common law constitutionalism, which maintains that legislative authority is limited by fundamental common law principles such as the rule of law, equality and liberty.Footnote 144 A prominent example is the case of Durham Holdings v NSW (‘Durham’).Footnote 145 The same idea has also encouraged resistance to overly creative approaches to constitutional interpretation, for example, through the long-established requirement that constitutional implications may be recognised only if they are ‘necessary’.Footnote 146 George Winterton took Kirby J to task for re-affirming, in Durham, the traditional view that the POGG formula conferred plenary power, but then insinuating that the High Court could limit that power whenever desirable through the ‘discovery’ of novel constitutional implications.Footnote 147 Since it is embedded in the POGG formula in our written constitutions, the principle of (limited) parliamentary sovereignty or supremacy acts as a counter-weight to arguments favouring the recognition of novel constitutional implications that would limit legislative power. This is a straight-forward application of the requirement that the interpretation of any legal instrument be guided by all parts of the instrument.
Goss argues that we do not need the idea of legislative ‘sovereignty’ or ‘supremacy’ for these purposes, because we can rely on more specific constitutional provisions to do the necessary work. For example, he observes that s 5 of the Commonwealth Constitution makes the common law subordinate to Commonwealth legislation.Footnote 148 But it does not make it subordinate to State legislation. In that regard, s 3 of the Colonial Laws Validity Act 1865 (Imp) once played a vital role, but it was repealed and replaced by ss 3 and 2 (respectively) of the Australia Acts. Section 2(2) of that Act provides ‘that the legislative powers of the Parliament of each State include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of this Act for the peace, order and good government of that State’. This takes us back to the meaning of the POGG formula, and is reminiscent of the way the JCPC, in the Burah and Hodge line of cases, likened colonial legislative power to that of the British Parliament. Goss may be able to rely on other constitutional provisions, but surely it is useful to have, at least as a backstop, a conception of legislative power as inherently superior in legal authority to the common law and other extra-constitutional norms.
The doctrine of legislative supremacy has also played a pivotal role in American debates about statutory interpretation.Footnote 149 As John Manning explains: ‘In a constitutional system predicated upon legislative supremacy (within constitutional boundaries), judges — as Congress’s faithful agents — must try to ascertain as accurately as possible what Congress meant by the words it used.’Footnote 150
Hence, in the on-going debates between textualists and purposivists over the best method of interpreting statutes, both claim to respect the doctrine of legislative supremacy more reliably than the other.Footnote 151 This claim is often expressed in terms of courts being ‘faithful agents’ of the legislature,Footnote 152 which Cass Sunstein has described as ‘the most prominent conception [in the United States] of the role of courts in statutory construction.’Footnote 153 It is not strictly accurate to describe courts as agents of the legislature because they are really agents of the law; but since the law establishes legislative supremacy, the description is a serviceable analogy.
British, Canadian and Australian lawyers have often expressed much the same view. Maxwell stated in 1883 that ‘Statute law is the will of the Legislature; and the object of all judicial interpretation of it is to determine what intention is conveyed, either expressly or by implication, by the language used’.Footnote 154 Lord Scarman reaffirmed the same principle a century later:
in the field of statute law the judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes, and un-makes, the law: the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires.Footnote 155
In Canada, Dickson CJ said: ‘It is the prerogative of a sovereign Parliament to make its intention known … While the courts must determine the meaning of statutory provisions, they do so in the name of seeking out the intention or sovereign will of Parliament …’Footnote 156
In Australia, Gleeson CJ said that ‘the object of a court is to ascertain and give effect to, the will of Parliament’.Footnote 157 It follows that ‘[j]udicial exposition of the meaning of a statutory text is legitimate so long as it is an exercise … in discovering the will of Parliament: it is illegitimate when it is an exercise in imposing the will of the judge’.Footnote 158 This is why common law courts have for centuries asserted that the primary object of statutory interpretation is ‘to give effect to the intention of the [law-maker] as that intention is to be gathered from the language employed having regard to the context in connection with which it is employed.’Footnote 159
If the idea of legislative supremacy or sovereignty – within constitutional limits – were abandoned, this long-standing judicial stance of respecting the expressed or manifest will of Parliament might possibly be undermined. The principle of the separation of powers, by itself, might not be sufficient to sustain it. For example, there is clearly potential for ambitious expansion of ‘the principle of legality’ to create a kind of common law bill of rights that would, in practice, give the common law constitutionalists everything they desire.Footnote 160 Some people, of course, welcome that prospect, or even celebrate it as a fait accompli. But as long as the idea of legislative supremacy within constitutional limits prevails, such a development should be deemed unconstitutional because it would violate the plenary power conferred by the POGG or equivalent formula of the relevant jurisdiction.
6. Conclusion
The title of Goss’s article poses a question: ‘What do Australians talk about when they talk about “Parliamentary sovereignty”?’ The correct answer is: they talk about exactly the same thing as did the most eminent British jurists from the 1870s onwards, whose understanding of it formed part of our inheritance and was embodied in the POGG formula used in so many of our constitutional instruments. This understanding is also embedded in binding precedent, culminating in the unanimous judgment of the High Court in the Union Steamship case.Footnote 161
This traditional conception was summarised in another passage by Jennings:
The words ‘peace, order and good government’ … [are] a compendious means of delegating full powers of legislation, subject to any limitations which may be expressed, and to any overriding legislation… Within its powers a legislature, unlike a local authority or a railway company, can pass what legislation it pleases. It has been said that a colonial legislature is ‘sovereign within its powers’. To a political scientist this phrase is nonsense, for the essence of sovereignty is that the powers are unlimited. But it is a convenient way of stating the legal rule that a power to legislate for the peace, order and good government of a colony is a power to enact any kind of legislation, reasonable or unreasonable, desirable or undesirable.Footnote 162
Jennings’ bluntness might repel some people: how can power to enact unreasonable and undesirable legislation possibly be preferable to the expansion of constitutional limits to legislative power? Perhaps it is not, but that depends on answering strongly contested questions that are the subject of a vast literature.Footnote 163 One of those questions today concerns the desirability of constitutional or legislative reform to require genuine consultation with indigenous communities before the enactment of legislation particularly affecting them.Footnote 164 But Goss’s article does not concern these questions: he explicitly denies arguing either for or against common law constitutionalism, judicial supremacy, or an Australian Bill of Rights.Footnote 165 He is concerned about the intelligibility and accuracy of our traditional conception of limited legislative sovereignty or supremacy, which Jennings summarises, in describing our current constitutional arrangements. I have tried to allay Goss’s concerns by showing that the traditional conception is intelligible and accurate, whether or not one finds it congenial. On the other hand, I have conceded that the term ‘supremacy’ may be more acceptable than that of ‘sovereignty’, given that our parliaments are subject to so many limitations.Footnote 166
I have also argued that this traditional conception is of real practical utility. As Keven Booker observed, ‘[t]he idea of a legislature possessing plenary power within limits did not merely benefit Australia during the colonial period; it became and lives on as a key ruling idea in our constitutional jurisprudence.’Footnote 167 It is embedded in our constitutional law, and continues to exert practical influence in several ways. First, it asserts that while legislative power is subordinate to specific constitutional requirements, it is superior to extra-constitutional norms including those of the common law. Because it is constitutionally entrenched, in ss 51 and 52 of the Commonwealth Constitution and s 2(2) of the Australia Acts, it is an insurmountable obstacle to the theory of common law constitutionalism gaining traction in Australia. It also adds to other grounds for resisting the temptation to smuggle extra-constitutional norms into our written constitutions through loose or fanciful methods of pseudo-interpretation. Secondly, it has traditionally been understood to entail that, when interpreting a statute, courts should give effect to the will of the legislature when that has been manifested with sufficient clarity by the text of the statute given the context of its enactment. For centuries, this has been the lodestar of statutory interpretation throughout the common law world, including the United States as well as the British Commonwealth.Footnote 168
The idea of parliamentary sovereignty or supremacy is today justified mainly by the following principle of political legitimacy.
The great task of constitutional law is to establish institutions that citizens broadly consider to be legitimate … Parliamentary sovereignty is founded on the idea that … the most legitimate arrangements [are] achieved … by vesting ultimate power in the institution that best represents the people. Such an institution should be directly answerable to the citizens so that, to the extent possible, the people govern themselves.Footnote 169
Talk about parliamentary sovereignty or supremacy in Australia serves a third vital purpose in drawing attention to this principle of self-government, which is an aspect of popular sovereignty. This returns us to Dicey’s thesis that Parliament’s legal sovereignty is justified in large part by its giving practical effect to the political sovereignty of the people.Footnote 170 Self-government is not, of course, the only important principle of political legitimacy, which is why legislative sovereignty or supremacy is typically subject to limits in modern constitutional democracies. But in such a democracy, including Australia, these limits are themselves typically established, and able to be changed, only with the agreement of the people, expressed in an election or referendum.
Acknowledgements
I thank Ryan Goss, Geoff Lindell, Jesse Hartery, Will Partlett, Lisa Burton Crawford, Patrick Emerton, Dale Smith, Maria O’Sullivan, Ben Saunders and David Tan for helpful comments on earlier drafts, and Warren Newman for other assistance.
Open access
