“THE PEOPLE” AS A SOURCE OF CONSTITUTIONAL PRINCIPLE

Date01 December 2017
Published date01 December 2017

The Australian Constitution and the Contours of Representative Government

This article explores the genesis of “the people” as an Australian constitutional touchstone. While the mandate that the Commonwealth Parliament be “directly chosen by the people” has seen the High Court of Australia source an implied freedom of political communication and a constitutionally guaranteed franchise, its content remains opaque and many questions remain as to the role of the High Court in determining the contours of representative government within the Australia constitutional landscape.

1 In Australia, the pre-federation catch-cry of “One people. One destiny”1 was transformed by the Preamble of the Commonwealth of Australia Constitution Act 1900 into an agreement of “the people … to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland”.

2 This article explores the genesis of “the people” as an Australian constitutional touchstone and its various manifestations and uncertainties including the Antipodean profile of “popular” or “political” sovereignty. The mandate that Parliament be “directly chosen by the people” has seen the High Court of Australia source an implied freedom of political communication and a constitutionally guaranteed franchise. However, its content remains opaque and many questions remain as to the role of the High Court in determining the contours of representative government within the Australia constitutional landscape.

I. Australian federation

An Act to constitute the Commonwealth of Australia[2]

3 From 1 January 1901, the six Australian colonies, under the British-enacted Commonwealth Constitution,3 formed a federation drawing on American and British constitutional influences. As a constitutional monarchy under the British crown, but with a local Governor-General as the Queen's representative, power was divided between one Commonwealth (or federal) government and the six “continuing”4 states and later, territories. The Commonwealth Constitution established a Commonwealth parliament, with a House of Representatives and a house of review (the Senate) founded on the principles of representative and responsible government by which the executive arm was to be held to account. It also ensured that the judicial power of the Commonwealth was to be invested within courts and established the High Court of Australia.

4 While the Commonwealth of Australia Constitution Act 1900 was enacted by the UK Parliament, the Australian people did have a role in the move to federate. Progressively, although admittedly without a broad sweeping franchise,5 there were referendums held in the colonies,6 acquiescing to the draft constitutional document.7 Today, “the people” are required to exercise their democratic rights with compulsory voting (via legislative and not constitutionalised avenues)8 at federal elections and referendums.

II. Popular sovereignty

WHEREAS the people …[9]

5 Much debate in Australia has focused on popular sovereignty and whether it explains the legitimacy of the Commonwealth Constitution.10 Much of this deliberation has centred on the accumulation of sovereignty by “the people” after federation on 1 January 1901, if it was not held prior as the form of the Preamble might suggest.11 As John Quick and Robert Garran explained, although the Constitution “proceeds from the people, it is clothed with the form of law by an Act of the Imperial Parliament”12 and is enclosed within covering cl 9 of a UK statute.

6 Later constitutional milestones such as the passing of the UK Statute of Westminster 1931 and the UK and Commonwealth Australia Acts 1986 saw a shrinking in the UK's legislative powers over the federation. Accordingly, it is sometimes said that, as the only avenue to reform the Commonwealth Constitution is via a constitutional referendum under s 128; this provision has become the derived source of Australia's popular sovereignty.13 However, as George Winterton has

noted in this regard, such statements can begin to conflate meanings of “sovereignty”.14 For Winterton, it can be used to refer to “the source” of the Constitution's “authority” or the facility to change it, with the latter being the less indeterminate in the Australian context.15

7 What is clear is that any assertions of Australian “people power” need some qualification. Even if the explanatory power of the sovereignty of “the people” is more palatable, it is not necessarily a substitute legal explanation for the binding nature of the Constitution.16 “The people” did not acquire sovereignty from the UK through transference as such.17 Instead, the decreasing legislative powers of the UK Parliament with respect to Australia saw a gradual reduction in its constitutional and legislative status, while still retaining the British monarch as the Australian head of state. As Winterton recognised:18

The continuing legal authority of our Constitution derives from its original enactment at Westminster and subsequent retention (with amendments) by those empowered to amend it, which includes the Australian electors. But the latter derived their legal authority from the former.

Further, in terms of the facility to change the Constitution, the power of the federal parliament in the constitutional reform process must not be overlooked. The electorate (or for that matter, the states) cannot

unilaterally propose s 128 constitutional amendments.19 Rather, by the provision's terms, such amendments must originate in a bill introduced into the Senate or House of Representatives. The provision also then requires that a constitutional amendment be, at least, passed by an absolute majority of both houses of the Commonwealth Parliament as well as a majority of electors in a majority of states and a majority of electors overall (and with some amendments, a majority of the electors of the affected state).

8 The question is what place this leaves for popular sovereignty and what it delineates? Does it have merely a figurative significance20 or is there a greater role for it to play?21 There is a rich body of literature in the US concerning, and questioning, the sovereignty of the people.22 This is not surprising given the US Constitution's23 pyrotechnic beginning: “[w]e the people of the United States”.24 The “people's” constitutional mystification is partly definitional and partly practical. It is definitional as to whether popular sovereignty is being attached to thicker (control by the people) or thinner (more agency-centred) conceptions and whether it is being used in a “legal” or “political” “sense”.25 It is practical in the sense that the populace are frequently

sidelined from the political quotidian26 and must reckon with the inevitable pull of the sovereignty of parliament notwithstanding the constitutional and conventional limits upon it.

9 It might be that popular sovereignty exists by virtue of the constitutional and political mechanisms through which representatives are kept accountable and through the signalling of the people's preferences at the ballot box or referendums.27 Much turns on what pattern and degree of “sovereignty” emerges in this setting.28 There is also an evident shift in the jurisprudence towards the phraseology of “political sovereignty” to explicate the nature of the people's participation in and engagement with governance in Australia.29 As Denis Galligan explained: “[t]he Australian Constitution … says nothing about sovereignty, yet in providing for elections and related matters, assumes the people to be in some sense supreme. This idea may conveniently be expressed as political sovereignty”.30

A. Implied freedom of political communication: “The people” and “political sovereignty” – A source of constitutional principle?

10 One of the key ways that the political sovereignty of the people has been practically and constitutionally recognised has been through the development of the implied freedom of political communication in Australia as pivotal to the operation of representative government as set out in the constitutional text.

Australian Capital Television Pty Ltd v Commonwealth31 (“ACTV”) and the contemporaneous Nationwide News v Wills32 were watershed decisions in this regard.

11 In giving the Sir Maurice Byers Memorial Lecture, Stephen Gageler33 recounted Sir Maurice Byers QC's famous submission in ACTV that:34

The agreement of the Australian people called the Constitution into existence and gave it substantial validity. The Commonwealth of Australia Constitution Act … gave that agreement legal form. The Constitution derives its continuing validity from the will of the Australian people … The Constitution enshrines the principles of representative and responsible government: … Section 106 preserves the existence of State Constitutions in which representative and responsible government were at the time of federation, and remain, essential characteristics … The principle of responsible government permeates the Constitution, forming part of the fabric on which the written words of the Constitution are superimposed. That principle, involving as its essential feature executive responsibility to a popularly elected legislature, has as its principal design and effect that the actual government of the State is conducted by officers who enjoy the confidence of the people … Representative and responsible government is responsive to the voice of the people … The fundamental premise of the structure of the Constitution, and in particular of the electoral processes specifically provided for by ss 7, 24, 28 and 128 and preserved in the case of State Constitutions by s 106, is the continuous ability of the Australian people as a whole to make informed judgments on matters of political significance. This necessarily involves the capacity at all times for free and unhindered public discussion on all such matters, subject to traditional and proportional...

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