Presentation Transcript

1. The idea of sovereignty One who exercises unlimited power eg Hobbes’ Leviathan The Australian Commonwealth: A federation Three arms of government Judicial review (of admin, exec & legislative action) Proposal: The Constitution is sovereign because the fundamental legal norm is the rule of law, which is fundamental because it coheres with human nature
2. 1st possibility The people are sovereign, because The Parliament is chosen by the people, ss 7 & 24 The Federation referendum was passed by the people Constitutional changes require popular assent, s 128 Several opinions of Mason court judges eg in Australian Capital Television and Nationwide News Widespread view in society
3. Parliament is chosen by the people, but… Many people ‘of each State’ and ‘of the Commonwealth’ may not enrol to vote eg under 18, the very old, some disabled, some mentally ill, many prisoners, non-citizens etc Some people entitled to enrol do not enrol Some who are enrolled do not vote Some who are entitled to vote arguably should not vote It’s hard to accept that the people esp as a whole can act like a sovereign The word democracy is nowhere in the Constitution; it could have been put there
4. The people voted in favour of Federation, but… But only 17% of the population actually voted, and far fewer than this supported federation
5. Constitutional changes require popular consent, but… Very few proposals succeed The double majority requirement means that a minority of 20% of voters can block a proposal supported by 80% There is only parliamentary initiation of proposals for change Turnbull: many voters are ignorant and, as a result, tend to be complacent & conservative Davidson: Australians have been produced since white settlement as cowardly, subservient, individualistic and timid What might have been, Rousseau > Habermas The actual history, Hobbes > Nietzsche
6. Some High Court judges have recognised popular sovereignty, but… The same judges often rule statutes passed by the Parliament are invalid, because eg No constitutional head of power exists A right has been breached Inconsistent with Chp III principles Conclusion: the people are not sovereign
7. 2nd possibility The High Court is sovereign because it strikes down statutes (but later legislation may override cases in which this happens) Resolves constitutional disputes incl between the States & the Commonwealth (but most legislation is never challenged) Determines the meaning of the Constitution – as a whole and in its parts, but is always constrained by the rule of law Conclusion: The High Court is not sovereign
8. Checks & balances These obviously exist and account for the creative tension and differences between the Parliament and the High Court But of particular importance is the common law principle of the ‘rule of law’; most clearly seen in Chapter III cases where the High Court is asked to invalidate statutes
9. 3rd possibility The Constitution is sovereign ie the sovereign is not a person or institution but the foundational law/set of legal principles of the Commonwealth Even though this is foreign to the traditional idea of sovereignty, it is consistent with the common law principle of the ‘rule of law’ The meaning of the ‘rule of law’ is most visible in Chp III (and similar) cases
10. Cases on the Rule of Law Communist Party 1950 esp Dixon CJ BLF v NSW 1986 (and Union Steamship 1988): ss 5 and 51 Wainohu 2011: court must give reasons Tait 1962: the executive must defer to court processes Hindmarsh Island 1998: on the race power Dietrich 1992: trials must be fair Leeth 1992: right to equal treatment under the law unless rational basis for doing otherwise Kable 1996: courts cannot be required to act non-judicially Free speech cases: political speech is free unless it is constrained on reasonable grounds
11. Rule of Law, Common Sense and Everyday Life The rule of law is based upon the common sense of everyday life, during which ethical and political judgements are continuously made about what is right orwrong (justice), and good and bad. s. 51: ‘peace order and good government’ (s. 5, NSW: welfare replaces order) We properly and naturally presume that:- 1. peace is better than war or civil strife, 2. order is preferable chaos 3. good governments is preferable to bad government
12. Aristotle > Habermas Human beings by nature: 1. Speak and use their reason 2. Are communal 3. Desire to know, to fornicate, to have money etc 4. Have a sense of justice These assumptions are obviously true according to common sense; no scientist would even bother trying to refute them (possibly except No 3) ie a person cannot walk around herself
13. Human NatureThe Rule of LawThe Constitution Some things are always changing Some things don’t change The Constitution is a written text – fixed in this sense The Constitution stays fixed like this, but because things in the world change, the text must be continuously re-interpreted to take account of these changes Through various agents, the Constitution and the rule of law develop (but in some ways stay the same) like a non-linear twisting spiral. This reflects the circularity involved in the dynamics between the text and the agents who work with it in the world
14. Two Sovereigns? It is possible that the Constitution and the rule of law are both sovereign at the same time and that they reinforce each other This can be true on the analogy of the Crown as sovereign – the Crown is one but many eg the Crown in right of the Commonwealth, as opposed to the Crown in right of the State of NSW
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