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"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

the legislative sovereignty of Parliament « Previous | |Next »
October 9, 2009

There is a good point made in Stephen Sedley's review of Vernon Bogdanor's The New British Constitution in the London Review of Books. Bogdanor argues with respect to Britain that parliamentary democracy in which ultimate power resides in a representative legislature is giving away to a popular democracy based on localised devolution of power, reflecting the individualism which both Thatcher and Blair have validated, fuelled by the participatory potential of information technology.

The point I want to highlight is one about parliamentary democracy, in which ultimate power resides in a representative legislature, as t many consider this the foundation stone of the Australian political system. Sedley says:

It is now widely accepted, and Bogdanor does not dispute, that the doctrine of parliamentary supremacy is itself an artefact of the common law, growing out of the historic compromise between the three limbs of the crown – legislative, judicial and executive – which was reached in the course of the 17th century and has been developed in modern concepts of the rule of law. Off parade, one or two senior judges have in the past considered the consequent possibility that if parliamentary legislation were to violate fundamental constitutional norms it might be the duty of the courts to disapply it.

This implies that parliamentary sovereignty is no longer, if it ever was, absolute. Is the process one of the English principle of the absolute legislative sovereignty of Parliament being qualified step by slow step?

Can we, in Australia, envision a situation in which the judges in the High Court deem a law passed by Parliament to be unconstitutional and to treat it as invalid. That situation would bring into sharp focus the allocation of power between Parliament and the courts in our federation would it not?

Those who argue for the absolute position rely on the views of A.V. Dicey who held that there are no limits to the legislative competence of Parliament:

Each Parliament is absolutely sovereign in its own time and may legislate as it wishes on any topic and for any place. That which has been enacted by Parliament has supreme force and cannot be invalidated or changed by any other domestic or external authority. As so outlined, the doctrine has been the very foundation of the British constitution since at least the latter days of the nineteenth century.

That cannot be the case in Australia since our federalism is abased on a written constitution, and presumably Parliament cannot override, or amend, the constitution on its own. It is written constitution against which the validity of Parliament’s enactments may be tested. So the legislative sovereignty of Parliament is not absolute.

| Posted by Gary Sauer-Thompson at 8:58 AM |