¹ See, for example, John Locke's efforts to come to terms with their association in Two Treatises ofGovernment (1956, J W Gough (ed)) at ch xi: “Of the Extent of the Legislative Power”. In Dunning's view, Locke saw the legislative arm of government as “bound ... to rule according to the law of nature, to carry on its functions through fixed and general laws rather than arbitrary decrees ...” (emphasis added). WA Dunning, A History of Political Theories: From Luther to Montesquieu (1928) at 360.

² Walker, G de Q The Rule of Law: Foundation of Constitutional Democracy (1988)Google Scholar at 144. Geoffrey Marshall has observed in the same vein, that “[r]emarks about ‘absolute’ and ‘uncontrollable’ authority seem sometimes to have been repeated as a kind of juristic platitude”: Parliamentary Sovereignty and the Commonwealth (1957) at 49.

³ As Mcllwain was moved to proclaim barely 10 years after the birth of the Australian Constitution, M[T]he existing theory of parliamentary sovereignty,which has undoutedly served a valuable purpose in England, is not comprehensive enough for the British Empire. With new conditions, changes in machinerymust be made to meet them and the theory must follow;: C H Mcllwain, The High Court of Parliament and its Supremacy (1910) at 369.

⁴ See L Zines (ed), Commentaries on the Australian Constitution (1977); H P Lee and G Winterton (eds), Australian Constitutional Perspectives (1992); and G Craven, Australian Federation: Towards the Second Century (1992), for three notable contributions.

⁵ For such an historical analysis see, for example, M Loughlin, Public Law and Political Theory(1992) at ch 7.

⁶ See, for example, Saunders, Cheryl “Governments, Legislatures and Courts: Striking a Balance”, in MP Ellinghaus, A J Bradbrook and A J Duggan (eds), The Emergence of Australian Law (1989)Google Scholar at ch 13.

⁷ See generally, M Loughlin, above n 5 and P P Craig, “Dicey: Unitary, Self-Correcting Democracy and Public Law” (1990) 106 LQR 105.

⁸ Walker, G de Q, “Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with the Freedom of Religion” (1985)Google Scholar 59 ALJ 276 at 283-284. His comment was directed at the apparently unquestioned acceptance of Dicey's view by the South Australian Supreme Court in Grace Bible Church v Reedman (1984) 36 SASR 376.

⁹ See below, n 39 and accompanying text.

¹⁰ I Harden and N Lewis, The Noble Lie (1986) at ch 1.

¹¹ AGD Bradney, “Parliamentary Sovereignty – A Question of Status” (1985) 36 NILQ 2; Bradney concludes his article by saying that the strength of the doctrine “lies not purely in its ability to provide an explanation of facts but more in the comfort that it provides its adherents” (at 11). For other interpretations see, for example, N Johnson, In Search of the Constitution (1977) at ch 4; A W Bradley, “The Sovereignty of Parliament – in Perpetuity?” in J Jowell and D Oliver (eds), The Changing Constitution (2nd ed 1989) at 25; and, P P Craig, above, n 7.

¹² A V Dicey, Introduction to the Study of the Law of the Constitution (8th ed 1915) at 74-82. In the realm of “political sovereignty” (which he distinguished from “legal sovereignty”), Parliament, according to Dicey, “is limited on every side by the possibility of popular resistance”: ibid at 76.

¹³ Such legal sovereignty is, according to Mcllwain, most peculiar. “One, in fact, whose very precarious existence is dependent upon the whim ofa power outside itself”; above n 3 at 381.

¹⁴ Quoted by Dicey, above n 12 at 79.

¹⁵ These Acts together establish the primacy of the House of Commons over the House of Lords in cases of conflict between the two over proposed legislation.

¹⁶ R v Secretary of State for Transport, ex parte Factortame & others [1990] 3 WLR 818.

¹⁷ R v Secretary of State for Transport, ex parte Factortame & others [1990] 3 CMLR 867.

¹⁸ In this respect I am in agreement with Neil MacCormick, “Beyond the Sovereign State” (1993) 56 MLR 1 at 3. See also G Winterton, “The British Grundnorm: Parliamentary Supremacy Re-Examined” (1976) 92 LQR 591 at 615.

¹⁹ G Marshall, above n2. In part of his reasoning, Marshall proposes that Parliament's supremacy “may be merely relative to that of other organs of government”, which is not, he continues, a contention that “amounts logically to an assertion of legislative omnipotence”: ibid at 48-49.

²⁰ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the Engineers' case) (1920) 28 CLR 129 at 153 (per Knox CJ, Isaacs, Rich and Starke JJ). The source from which their Honours quoted was the case of Hodge v R (1884) 9 App Cas 117 at 132. The problem, however, may be overcome if one calls in aid the prescient interpretation of the Court's judgment provided by Leslie Zines: “[T]he Commonwealth parliament was not of course ‘sovereign’ in the sense that the British parliament was or even in the sense that the New South Wales parliament was before federation.... The British legal notion of the supremacy of parliament with its concomitant consequence of political rather than legal checks on power is the clear philosophy in the Engineers' case”: “Federal Theory and Australian Federalism – A Legal Perspective” in B Galligan (ed) Australian Federalism (1989) 16 at 22.

²¹ J Goldsworthy, “The Constitutional Protection of Rights in Australia” in Craven (ed), above n4 at 157 (emphasis added). See also, G de Q Walker who, despite repeating the same statement as quoted above (at n 8) in his book The Ride of Law (above at n 2) at 161, appears to have succumbedto the very hypnotic effect he derides when he fails earlier in the work to acknowledge the distinctive nature of parliamentary sovereignty and its impertinence to Australian circumstances (at 144-161). Cf, however, Street CJ in Building Construction Employees and Builders' Labourers Federation vMinister for Industrial Relations (1986) 7 NSWLR 372 at 383; and Sir Anthony Mason, “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and United States Experience” (1986) 16 F L Rev 1.

²² All would be well with Goldsworthy's statement, in my view, if “supreme” were substituted for “sovereignty”. It isapposite here to note Goldsworthy's novel, if pragmatic, solution to what he considers to be the “exaggeration”that is the doctrineof parliamentary sovereignty. He suggests that: “[SJince parliament is unlikely to enact truly evil laws, why not ignore complications which for practical purposes are unnecessary, and indeed dangerous, in that any acknowledgement of limits to parliament's authority would tempt judges to define them and to draw them much too narrowly. The considerations which justify the authority of parliament – legal certainty, institutional competence,the avoidance of intragovernmental conflict, and above all the many principled and pragmatic grounds for representative democracy – justify an authoritywhich, if limited, is vast”: above n 21 at 160.

²³ On the limiting effect of which see Victoria v Commonwealth (the PMA case) (1975) 134 CLR 81.

²⁴ This section provides that any such proposed amendment be put to a referendum. Though he was referring to a different set of circumstances, it is apt to quote Mcllwain on this point: “[w]hen the referendum really comes, the sovereignty of Parliament must go”; above n 3 at xi.

²⁵ See, for example, CJs, Barwick declaration that “[t]he law-making process of Parliament in Australia is controlled by a written constitution”: Cormack v Cope (1974)Google Scholar 31 CLR 432 at 452; and, Brennan J's reference to the “supreme law of the constitution”, in NationwideNews Pty Ltd v Wills (1992) 108 ALR 681 at 668.

²⁶ See, for example, ss 5A, 5B, 7A and 7B of the NSW Constitution Act 1902 and ss 18 and 67 of Victoria's Constitution Act 1975. Furthermore, all such limitations are reinforced by s 6 of the Australia Acts 1986 (Cth).

²⁷ Constitution Act 1902 (NSW), s 5.

²⁸ Constitution Act 1975 (Vic), s 16. Section 2(1) of the Australia Acts 1986 (Cth), of course, reiterates, the “full power” of the States' Parliaments to make laws for the peace order and good government of their relevant States.

²⁹ On which see, for example, Cox v Tomat (1971) 126 CLR105; Union Steamship Co of Australia Pty Ltd v King (1988) 82 ALR 43 at 48 and Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 88 ALR 12.

³⁰ BLF case (1986) 7 NSWLR 372 at 387; the case turned on the interpretation of s 5 of the New South Wales Constitution Act 1902.

³¹ Ibid at 382-385.

³² In Kirby P's opinion the term, which draws upon the “long-standing political realities and … the desirable notion of an elected democracy”, connotes no limitation on legislative competence. As a result, it provides no latitude for judicial review; ibid at 405. In Union Steamship(1988) 82 ALR 43 at 48, the High Court unanimously held that the term comprises words that “are not words of limitation”.

³³ Uther v Federal Commissioner of Taxation (1947) 74 CLR 509 at 530 (Dixon J dissenting). Indeed, this is expressly recognised in s 5 of the NSW Constitution Act, the opening word of which read: “[t]he Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act…”. Note also that this was one of the recognised grounds of limitation (outside s 5) referred to by Kirby P in the BLF case: (1986) 7 NSWLR 372 at 397. See also s 5(a) of the Australia Acts 1986 (Cth).

³⁴ See the Engineers' case (1920) 28 CLR 129. Note also, the expression of the bindingness and primacy of Commonwealth law in covering cl 5 of the Constitution.

³⁵ Constitution Act 1934 (Tas). Interestingly, the recognition of the Parliament's power is provided in the Preamble rather than in specific section of the Act.

³⁶ Tasmania v Commonwealth (1983) 158 CLR 1. See also the first Adabo case, in which the High Court relied directly on s 109 of the Constitution to invalidate a Queensland statute that conflicted with a Commonwealth Act: Mabo v Queensland (1988) 83 ALR14.

³⁷ On the impact of the Australia Acts, Geoff Lindell has observed, “The fact that the British Parliament has vacated the authority to legislatefor Australia without having freed the Federal and State Parliaments from certain limitations which restrict their authority to legislate inconsistentlywith the Constitution and also the Australia Acts should not be taken as being inconsistent with the attainment of Australian independence and sovereignty”: “Why is Australia's Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 F L Rev 29 at 36.

³⁸ Australian Communist Party v Commonwealth (1950-1) 83 CLR1 at 193.

³⁹ This is so whether one sides with the minimalist (that is formal) view of the doctrine as expressed either by Joseph Raz, who emphasises the distinction between the rule of law and the rule of good law (see, for example, his “The Rule of Law and its Virtue” (1977) 93 LQR 195), or more controversially, by E P Thompson who saw in its inhibitive nature “an unqualified human good” (Whigs and Hunters (1977) at 266), or with the more committed view as exemplified by Geoffre de Q Walker for whom in addition to the above formal, procedural requirements certain substantive qualities must also be present (comprising in sum a “twelve-point institutional definition” of the rule of law (above n 2 at 23-42), or R Beehler, “Waiting for the Rule of Law” (1988) 38 U Toronto L J 298. Equally, the proposition applies even if one prefers something in between these two extremes such as Jeffrey Jowell's perception of the rule of law as “a principle of institutional morality”: “The Rule of Law Today” in J Jowell and D Oliver, above n 11 at 1.

⁴⁰ It is along the same line of division that Hart separates his primary rules of obligation from his secondary rules of recognition; H L A Hart, The Concept of Law (1961) at 89-96.

⁴¹ See SA de Smith “Constitutionalism in the Commonwealth Today” (1962) Malaya Law Review 205 and T R S Allan, “Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism” (1985) 44 CLJ 111.

⁴² The State constitutions, of course, express no separation of powers doctrine and indeed provide little (or nothing) by way of definition of these organs.

⁴³ It is, therefore, the constitutions that provide the means by which the Australian system of representative democracy is meant to right itself rather than as in the United Kingdom (in the absence of constitutional statutes separate from the ordinary law) where, to use Craig's term, the democratic system is “self-correcting”: P P Craig, above n 7 at 6.

⁴⁴ For a discussion of nature and extent of these and other constitutional guarantees, see P Hanks, “Constitutional Guarantees” in H P Lee and G Winterton, above n 4 at ch 4.

⁴⁵ Sir Anthony Mason, Address to The Sydney Institute on 15 March 1994, as quoted in the i Australian, (16 March 1994) at 1.

⁴⁶ (1992) 108 ALR 681.

⁴⁷ Australian Capital Television Ltd v Commonwealth (No 2) (1992) 108 ALR 577.

⁴⁸ In form, the “right” is expressed negatively – that is, as a limitation on legislative i competence rather than as a positive, free-standing right.

⁴⁹ For discussion of the cases and their implications, see H P Lee, “The Australian High Court i and Implied Fundamental Guarantees” [1993] PL 606. For criticism of the decisions as being essentially anti-democratic, see K D Ewing, “New Constitutional Constraints in i Australia” [1993] PL 256 and N Douglas, “Freedom of Expression under the Australian Constitution” (1993) 16 UNSWLJ 315. See also the collection of essays in a special issue of I the Sydney Law Review entitled, Symposium: Constitutional Rights for Australia? (1994) Vol 16 i No 2 145-305.

⁵⁰ Which is developed principally through a series of articles, prominent amongst which are: above, n41; “The Limits of Parliamentary Sovereignty” [1985] PL 614; and, as applied to judicial review under administrative law, “Pragmatism and Theory in Public Law” (1988) | 104 LQR 422, and culminating in his recently published book: Law, Justice and Liberty (1993). For a placement (albeit brief) of Allan's interpretative argument in the Australian) context, see G Winterton, “Extra-Constitutional Notions in Australian Constitutional Law” (1986) 16 F L Rev 223. For a more general analysis of the peculiar temporal problems of I constitutional interpretation (best illustrated in US discourse on the matter) see, fori example, P Brest, “The Misconceived Quest of Original Understanding” (1980) 60 Bostom University L Rev 202.

⁵¹ Which is an inevitable consequence of a notion that “transcends any particular technical description of its component parts and speaks to larger ideas about the quality of democratic life”; I Harden and N Lewis, “Sir Douglas Wass and the Constitution: An End to Fairy Tales?” (1984) 35 NILQ 213 at 215. See further, n 39 above.

⁵² See n 39 above, and accompanying text.

⁵³ G de Q Walker, above n 2 at 356.

⁵⁴ Ibid at 358.

⁵⁵ Ibid at 313-316.

⁵⁶ Ibid at 359.

⁵⁷ Ibid at 359 and 374-400.

⁵⁸ See, above nn 44-49 and accompanying text.

⁵⁹ Indeed, in Diceyean terms the matter of securing assent is merely the duly acknowledged matter of external (or non-legal) limits on the legislature by another name; see above at n 12 and accompanying text.

⁶⁰ That is despite Walker's Hayekean-inspired proposals to the contrary in respect oParliament; above, n 2 at 388-392.

⁶¹ M Loughlin, above n 5 at 240.