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November 26, 2004
In a recent speech Justice Michael Kirby of the High Court of Australia addressed the issue of the ultimate foundation, or Grundnorm, and the obedience to the law in liberal democratic societies. From this he extracts some good insights about the limitations of Parliamentary sovereignty. These are very valuable for citizens facing the prospects of executive dominance after June 30 2005.
The issue Justice Kirby addressed is this: 'what is the legal bedrock'? More specifically, Kirby asks, do citizens:
"...obey statutes just because Parliament, elected from the people, enacts them? Or is this obedience grounded in the fact that the judges hold that such enactments are part of the law, as construed by the judges themselves in conformity with rules of the common law designed to uphold basic rights?"
Justice Kirby says that in Australia the answer that is conventionally given is in terms of the Australian constitution:
"Most lawyers - and virtually all political scientists - regard the ultimate foundation for the binding force of the Australian federal Constitution as the consideration of that document by the Australian people in successive referenda in the 1890s, the fact that it was approved by the electors authorised to vote at that time, and its acceptance thereafter by the people of Australia as the basic law for their governance."
The constitution is grounded in democracy, understood as the sovereignty of the Australian people.
Justice Kirby says that two implications flow from this constitutional interpretation.
First, the United Kingdom Parliament has no business whatever to be enacting any law concerning Australia's Constitution. The amendment of that Constitution belongs to the sovereign people of Australia as electors in accordance with the federal Constitution and to them alone.
Of course. Australia is a sovereign nation state whose constitution is grounded on democracy. There are no if's and buts about this.
Secondly, the notion of parliamentary omnipotence in lawmaking ( eg., the writings of Professor A. V. Dicey) can be rejected as erroneous. Judges have the power to invalidate an extreme law made by parliament which the Court held to be in conflict with the Constitution.There are limits to parlaimentary sovereignty, and it was for the judiciary to decide where those limits lay.
The question becomes: if the foundation of the Australian Constitution is the sovereignty of the Australian peopleunited as a nation, then does this expressed foundation implicitly reserve some rights to the people which a Parliament could not invade?
That question is the subject of Justice Kirby's lecture. Do have a read of it. It is a very good address.
What I find of interest as a political philosopher is less the relevance of international law to Australia, which is currently being blocked by a conservative high court, than Justice Kirby's question: 'to whom does sovereignty belong, the people or parliament? (p.12) That poses the question of sovereignty succinctly.
Here is his reasoning which I support:
"In the Australian Commonwealth, sovereignty belongs to all of the people who are Australian nationals. They are the "electors" who vote for the legislatures. Their participation is needed, under the Constitution, to change the basic law. In this context, "sovereignty" does not belong to Parliament, whether the Federal Parliament or a State Parliament any more than to the Crown, which is sometimes for historical reasons called the sovereign. Those bodies are instruments, in their own particular spheres, of the people's sovereignty. Necessarily, each sphere is limited. Only the people, conceived as a whole, enjoy the entire ultimate sovereign governmental power. And today even that assertion must be qualified by reference to international law and global forces."
I would add that it is not an assertion. It is a constitutional principle in need of interpretation. So what about the sovereignty of parliament? How do we interpret parliamentary "sovereignty" favoured by those politicians and academics in the Wesminister tradition who are hostile to an activist High Court? Justice Kirby says:
"....to talk of parliamentary "sovereignty" is not only incorrect; it is positively misleading. It leads parliamentarians to believe that they enjoy a plenary and uncontrolled power. At least under Australia's constitutional arrangements, that is never the case. Their powers are always subject to the written Constitution and ultimately determinable by courts of law. Where governments enjoy large majorities in a unicameral parliament, or effective majorities in both houses of a bicameral parliament, the role of the courts in protecting minority rights becomes more important. It is a power to be exercised lawfully, wisely and for the purpose of protecting the true sovereign - all of the people of the polity concerned."
That is constitutional liberalism for you. The written document is what we turn back to. Hence the importance of constitutional interpretation.
Is it the case, as Justice Kirby claims that the legislators are not sovereign as many in the Coaliton presuppose they are. As Kirby puts it:
"In this sense, the legislators are not "sovereign", if ever they were. They are subject to the overriding requirements of human rights and fundamental freedoms. In this way, the legislators in Parliament are reminded of their subordination, more than in occasional and sometimes chancy elections, to the basic rights of the true sovereign - the people whom all public officials serve.In Australia, we have a written Constitution that is accepted as enjoying a superior and entrenched status."
Justice Kirby observes that the willingness of the High Court of Australia to find rights implied in the language and structure of the Constitution recedes from the high point of the Mason court.
Justice Kirby adds, by way of conclusion, that "in a federation, with a written constitution, the notion of unchecked legislative power, that can diminish fundamental human rights without hindrance or protection from the courts, is not likely to prevail in the long run, in the antipodes anymore than elsewhere."
Wisely said.
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Actually all theories of sovereignty are self-contradictory, as demonstrated by Karl Popper in chapter 7 of The Open Society and its Enemies.