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Published online by Cambridge University Press: 24 January 2025
[I]t was natural once the conflict with Britain reached the stage where independence was the only real alternative to submission that the men of the Revolution should turn to constitution making.
I would like to thank Sir Anthony Mason and Professor George Winterton for giving me their views on “sovereignty of the people” I would also like to thank those who provided helpful comments on an earlier draft of this article: the anonymous referee, Professor Michael Chesterman, Professor Conal Condren, Professor Robert Post, Dr Helen Pringle, Alida Stanley and Professor George Winterton.
1 Schwartz, B, The Great Rights of Mankind:A History of the American Bill of Rights (1992) at 65Google Scholar.
2 Fitzgerald, B, “Proportionality and Australian Constitutionalism”(1993) 12 U Tas LR 263 at 276Google Scholar.
3 Smallbone, D, “Recent Suggestions of an Implied 'Bill of Rights' in the Constitution,Considered as Part of a General Trend in Constitutional Interpretation” (1993) 21 FL Rev 254 at 258Google Scholar; McDonald, L, “The Denizens of Democracy: The High Court and the 'Free Speech' Cases”(1994) 5 PLR 160 at 182Google Scholar; Blackshield, A R, “The Implied Freedom of Communication”in G Lindell(ed), Future Directions in Australian Constitutional Law (1994)232 at 242Google Scholar; Detmold, M, “The New Constitutional Law”(1994) 16 Syd LR 228Google Scholar.
4 Australian Capital Television Pty Ltd v Commonwealth (ACTV) (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
5 For example,L McDonald, above n 3,AR Blackshield,above n 3 and M Detmold, above n3.
6 Douglas, N, “Freedom of Expression Under the Australian Constitution”(1993) 16 UNSWLJ 315Google Scholar; Campbell, T, “Democracy,Human Rights,and Positive Law”(1994) 16 Syd LR 195Google Scholar; Fraser, A, “False Hopes:Implied Rights and Popular Sovereignty in the Australian Constitution”(1994) 16 Syd LR 213Google Scholar.
7 McGinty v Western Australia (1996)186 CLR 140.
8 Williams, G, “Sounding the Core of Representative Democracy:Implied Freedoms and Electoral Reform”(1996) 20 MULR 848 at 860Google Scholar.
9 D Ball, “The Lion that Squeaked:Representative Government and The High Court”(1996) 18 Syd LR372 at 379.
10 Lange v Australian Broadcasting Corporation (1997) 145 ALR 96.
11 Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104.
12 Levy v Victoria (1997) 146 ALR 248 at 273 footnote 105.
13 Levy, transcript of proceedings,High Court,6 August 1996 at 5.
14 Levy is discussed further in Part II of this article.
15 H Kelsen, An Introduction to the Problems of Legal Theory, (B Paulson and S Paulson translation 1992) at 58 (§29).
16 Lord Cooke has suggested that implications from the Constitution in cases such as ACTV are based on natural law concep : “The Dream of an International Common Law” in C Saunders (ed), Courts of Final Jurisdiction (1996) 138 at 139. TR S Allan has portrayed parliamentary sovereignty as a pillar of legal positivism: “The Limits of Parliamentary Sovereignty” [1985) Public Law 614 at 614. Note that this conflict between natural law and positivism is most sharply focussed if a “Lockean” view (described below) of “sovereignty of the people” is taken.
17 J Locke, Two Treatises of Government, P Laslett (ed),(1988) at 330-331: “Men being,as has been said, by Nature,all free,equal and independent, no one can be put out of this Estate,and subjected to the Political Power of another,without his own Consent. The only way whereby any one devests himself of his Natural Liberty,and puts on the bonds of Civil Society is by agreeing with other Men to joyn and unite into a Community,for their comfortable, safe, and peaceable living one amongst another, in asecure Enjoyment of their Properties,and a greater Security against any that are not of it”.
18 Ibid at 284.
19 For an application of this concept in an Australian context: see Finn, P, “A Sovereign People, A Public Trust” in P Finn (ed), Essays on Law and Government (1995) 1Google Scholar.
20 As much of the Two Treatises of Government was written before the 1688 Revolution, it is better regarded as a “demand for a revolution to be brought about, not the rationalization of a revolution in need of defence”: J Locke, above n 17 at 47.
21 Schwartz, B, The Great Rights of Mankind: A History of the American Bill of Rights (1992) at 70Google Scholar.
22 Thomas Jefferson,Declaration of Independence (original draft).
23 Dicey, A V, Introduction to the Study of the Law of the Constitution (10th ed, 1959) at 72-74Google Scholar.
24 J Austin, Jurisprudence (1879) 4th ed,vol I at 253,cited by Dicey, ibid at 74-5.
25 AV Dicey, above n 23 at 75.
26 Ibid at 62-63. Cf O Dixon, Jesting Pilate (1965) 203 at 206.
27 Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986)7 NSWLR 372 at 406 per Kirby P.
28 A Lincoln, “Address at the Dedication of the National Cemetery at Gettysburg” November 19, 1863. See also McCulloch v Maryland 4 Wheat 316;17 US Rep 159 (1819) at 404-405; 199 per Marshall q: “The government of the Union … emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them and are to be exercised directly on them, and for their benefit.” Cited by L Zines, “The Sovereignty of the People” paper delivered at the conference The Constitution and Australian Democracy, Old Parliament House. Canberra, 9-11 November 1995 at 11.
29 Nationwide News (1992) 177 CLR 1 at 70 per Deane and Toohey JJ. Deane J also used this phrase in Theophanous (1994) 182 CLR 104 at 180.
30 Kirmani v Captain Cook Cruises Pty Ltd (No1) (1985) 159 CLR 351 at 383 per Murphy J.
31 Winterton has listed Murphy J's rights as including “freedom of speech,assembly,communication and travel throughout the Commonwealth,freedom from slavery,serfdom,civil conscription,cruel and unusual punishment,arbitrary discrimination on the ground of sex, and freedom for fully competent adults from subjection to the guardianship of others”: Winterton, G, “Constitutionally Entrenched Common Law Rights:Sacrificing Means to Ends?”in C Sampford and K Preston (eds), Interpreting Constitutions (1996) 121 at 129Google Scholar.
32 Kirby, Justice, “Lionel Murphy and the Power of Ideas”(1993) 18 Alt LJ 253Google Scholar.
33 ACTV (1992) 177 CLR 106 and Nationwide News (1992) 177 CLR 1.
34 Strictly speaking,the federal structure of the Constitution means that no parliament in Australia is truly “sovereign”, rather it is “supreme”: Kinley, D, “Constitutional Brokerage in Australia:Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law”(1994) 22 FL Rev 194 at 197Google Scholar.
35 Leeth v Commonwealth (1992) 174 CLR 455; Nationwide News (1992) 177 CLR 1.
36 Theophanous (1994) 182 CLR 104; Cunliffe v Commonwealth (1994) 182 CLR 272.
37 (1992) 174 CLR 455 at 483.
38 Ibid at 484.
39 Ibid.
40 Ibid.
41 Ibid at 485.
42 Ibid at 486.
43 Nationwide News (1992) 177 CLR 1 at 74 per Deane and Toohey JJ.Deane and Toohey JJ's opinion parallels the view of the American Federalists who “considered 'every branch of the constitution and government to be popular' and regarded the president,Senate and even the judiciary as well as the House of Representatives as somehow all equal agents of the people's will”: Wood, G, The Creation of the American Republic, 1776-1787 (1969) at [549]Google Scholar.
44 Ibid.
45 Ibid at 70. See also Theophanous (1994) 182 CLR 104 at 180 per Deane J.
46 I Loveland, “Sullivan v New York Times Goes Down Under”[1996] Public Law 126 at 133.Winterton also makes this point and notes that “even so, Madison himself changed his mind and became the principal author and proponent of the Bill of Rights”: G Winterton, above n 31 at 133-4.
47 Toohey, Justice, “A Government of Laws,and Not of Men”(1993) PLR 158 at 170Google Scholar.This approach was also taken in Nationwide News (1992) 177 CLR 1 at 69 per Deane and Toohey JJ.
48 (1994) 182 CLR 104 at 172-173.
49 Ibid at 184 (emphasis added).
50 Compare with Cunliffe (1994) 182 CLR 272 at 341 per Deane J; ACTV (1992) 177 CLR 106 at 169 per Deane and Toohey JJ; Nationwide News (1992) 177 CLR 1 at 78 per Deane and Toohey JJ.
51 (1994) 182 CLR 104 at 149. Cf 195 per McHugh J.
52 (1992) 177 CLR 106 at 138.
53 Ibid at 187 per Dawson J.
54 Most of the majority judges left the question of individual rights open. The joint majority judgment in Theophanous (Mason CJ,Toohey and Gaudron JJ) put it this way: “[w]hether the implied freedom could also conceivably constitute a source of positive rights was not a question which arose for decision in those cases [Nationwide News and ACTV] and it is unnecessary to decide it in this case” (1994) 182 CLR 104 at 125.
55 The decisions in ACTV and Nationwide News were handed down on 30 September 1992.Toohey J's speech was delivered at the conference on Constitutional Change in the 1990s in Darwin, 4-6 October 1992.A revised edition of this speech is: Toohey, Justice, “A Government of Laws, and Not of Men?” (1993) 4 PLR 158Google Scholar.
56 Ibid at 170.Schwartz characterises the phrase “a government of laws and not of men” as “a logical response to the colonial experience,an experience that had prejudiced the colonists toward written law as against unwritten principles”: B Schwartz, above n 1 at 54.
57 B Fitzgerald,above n 2 at 285.
58 L McDonald, above n 3 at 182, (note omitted). The judges he identified were Mason CJ,Brennan, Deane, Toohey and Gaudron JJ.
59 A R Blackshield,above n 3 at 242.Blackshield also refers to the “momentous prospect that the High Court itself may be moving … from a pervasive assumption of 'parliamentary sovereignty',to one of 'popular sovereignty"':AR Blackshield, “Reinterpreting the Constitution” in J Brett, J Gillespie, M Goot (eds), Developments in Australian Politics (1994)at 24.
60 J Doyle QC, “Commentary”in Courts in a Representative Democracy (1995) at 145 (a comment on LZines, “Courts Unmaking Laws” ibid at 125).
61 McGinty v Western Australia (1996) 186 CLR 140 at 235-236 per McHugh J.
62 Ibid at 291.
63 For example,“[t]he Court should be astute not to accept at face value claims by the legislature …” (1992)177 CLR 106 at 145 per Mason CJ.
64 (1996) 186 CLR 140 at 183 per Dawson J; at 236 per McHugh J.
65 Compare with J Kirk, “Constitutional Implications From Representative Democracy” (1995) 23 F L Rev 37 at 58-63 and 76 who suggests that universal franchise and equal voting are the most controversial implications of representative democracy.
66 (1997) 145 ALR 96 at 104.
67 Ibid at 106.
68 (1997) 146 ALR 126 at 176 per Toohey J,who cited Lange in support of this proposition.As was noted earlier, McHugh J made a similar statement in Levy: “[i]t is not open to doubt that the Constitution protects the freedom of 'the people of the Commonwealth' … to communicate with each other”(1997) 146 ALR 248 at 273.
69 (1997) 145 ALR 96 at 112.
70 See, eg, ACTV (1992) 177 CLR 106 at 138 per Mason CJ.
71 J, Kirby noted in Levy (1997) 146 ALR 248 at 291Google Scholar that “[t]he restriction upon the making of laws has aconsequence protective of individual freedom of political and governmental communication.It is easy to slip from this fact into the language of individual rights.”
72 The American jurisprudence was explicitly distinguished in Lange (1997) 145 ALR 96 at 112:“it is the requirement and not a right of communication that is to be found in the Constitution.Unlike the First Amendment to the United States Constitution, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution”.
73 (1997) 146 ALR 248.
74 Levy, transcript of proceedings, High Court, 6 August 1996 at 3.
75 Ibid at 5.
76 The latter half of Levy was heard simultaneously with Lange as in both cases the plaintiffs sought to have the Court reconsider its earlier free speech decisions of Theophanous (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.
77 (1997) 146 ALR 248 at 255 per Brennan CJ. See also at 262-263 per Dawson J; at 267-268 per Toohey and Gummow JJ; at 272 per Gaudron J; at 277 per McHugh J; and at 294 per Kirby J.
78 Three judges found it unnecessary to decide the position under the Victorian Constitution:ibid at 255 per Brennan CJ; at 263 per Dawson J; and at 277 per McHugh J.
79 A R Blackshield,above n 59 at 26.See also L McDonald, above n 3 at 185.
80 A R Blackshield,ibid.
81 There are two considerable theoretical difficulties associated with this transfer.First,the timing is unclear.Although MurphyJ solved this difficulty by taking the view that Australia was independent on the date of federation (see Kirmani (1985) 159 CLR 351),this was “contrary to all political actions, views and assumptions at the time”: L Zines, above n 28 at 10 footnote 10. However,there is no clear date upon which a clean transfer of sovereignty could be said to have occurred. The second difficulty is that of equivalence.Unlike the sovereignty of the Imperial Parliament, the sovereignty of the people under the Constitution, s 128 does not include the ability to initiate constitutional amendment: L Zines, ibid at 7-8. One commentator has suggested that even a declaration of an Australian republic would be insufficient to quieten these theoretical doubts: A Fraser, above n 6 at 216.
82 Leeth (1992) 174 CLR 455 at 486 per Deane and Toohey JJ.
83 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 150 per Knox CJ, Isaacs, Rich and Starke JJ.
84 AR Blackshield, above n 59 at 31.
85 Compare Thomson's suggestion that “[t]he compact theory of federation is … more usually premised on the … proposition that [the Constitution] constitutes the agreement between constituent States by which they federated”: Thomson, J A, “The Australian Constitution:statute,fundamental document or compact” (1985) 59 Law Institute Journal 1199 and 1201Google Scholar, with Re Duncan; ex parte Australian Iron and Steel Pty Ltd (1983) 57 ALJR 649 at 671 per Deane J: “[t]he Constitution of Australia was established not pursuant to any compact between the Australian Colonies but,as the preamble of the Constitution emphatically declares, pursuant to the agreement of 'the people' of those Colonies”.A compact view of the Constitution was taken by Brennan CJ inKruger (1997) 146 ALR 126 at 139,but whether the parties are “the people” or “the Colonies” is left ambiguous: “[t]he Constitution, though in form and substance a statute of the Parliament of the United Kingdom, was a compact among the peoples of the federating Colonies, as the preamble to the Constitution declares”.
86 G Winterton,above n 31 at 121 (notes omitted).
87 Lindell, G, “Why is Australia's Constitution Binding? –The Reasons in 1900 and Now,and the Effect of Independence”(1986) 16 FL Rev 29 at 44Google Scholar.
88 (1996)186 CLR 140 at 230.
89 Ibid at 232.
90 A R Blackshield,above n 59 at 29-33;L McDonald, above n 3 at 164.
91 Attorney-General for New South Wales v Brewery Employees' Union (1908) 6 CLR 469 at 611 per Higgins J; Victoria v Commonwealth (1971) 122 CLR 353 at 397 per Windeyer J.See also G Lindell, above n 87 at 44-45.
92 L McDonald,above n 3 at 173.
93 P Finn, above n 19 at 12.
94 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 152 per Knox CJ, Isaacs, Rich and Starke JJ.
95 L McDonald, above n 3 at 173. See also Feldman, D, “Democracy, the Rule of Law and Judicial Review” (1990) 19 FL Rev 1 at 6-7Google Scholar.
96 “The primary historical material simply does not support the conclusion that the framers expressly intended to adopt, as a principle of their Constitution, a doctrine of separation of powers - be that doctrine narrowly or broadly conceived.” Wheeler, F, “Original Intent and the Doctrine of the Separation of Powers in Australia” (1996) 7 PLR 96 at 103Google Scholar.
97 W Bagehot, The English Constitution (1964) at 65 (first published 1867) cited by Gageler, S, “Foundations of Australian Federalism and the Role of Judicial Review” (1987) 17 F L Rev 162 at 169Google Scholar.
98 Compare with Lange (1997) 145 ALR 96 at 105.
99 B Fitzgerald,above n 2 at 300.
100 Lindell, G, “Responsible Government” in P Finn (ed) Essays on Law and Government (1995) 75 at 103-111Google Scholar.
101 Campbell argues that “if we despair of politics then courts will not save us”. T Campbell, above n 6 at 211.
102 Justice Kirby has noted that judicial activism and the calls for judicial accountability that it creates “will sometimes diminish judicial independence from external pressure”: Kirby, M, “Judicial Independence in Australia Reaches a Moment of Truth” (1990) 13 UNSWLJ 187 at 194Google Scholar.
103 Santow, Justice, “Aspects of Judicial Restraint” (1995) 13 ABRev 116 at 127Google Scholar.Lane has noted thesomewhat ambivalent approach of Brennan CJ on this issue: PH Lane, “The Changing Role of the High Court”(1996) 70 ALJ 246 at 249 n 39.
104 P Finn,above n 19 at 21.
105 G Winterton,above n 31 at 136.See also L Zines,above n 28 at 20.
106 Tribe, L H, American Constitutional Law (2nd ed 1988) at 62-65Google Scholar.This argument is applied by D Feldman,above n 95.
107 Justice Toohey, above n 47 at 172. Justice Toohey adopts Ackerman's vision of a “dualist democracy” in which the criterion for democratic legitimacy of normal legislation is only approval from the people's representatives, while constitutional change requires the negotiation of “a specially onerous lawmaking path”: Ackerman, B, “Constitutional Politics/Constitutional Law” (1989) 99 Yale Law Journal 453 at 464CrossRefGoogle Scholar.
108 A Hamilton, J Madison, and J Jay, The Federalist Papers (New American Library ed, 1961) 467 cited by S Gageler,above n 97 at 167.
109 L Zines, above n 28 at 24. Cf McGinty 186 CLR 140 at 269-270 per Gummow J.
110 See,eg,Zines'critique of Deane J's judgment in University of Wollongong v Metwally (1984) 158 CLR 447:L Zines,above n 28 at 20.
111 Reid, Lord, “The Judge as Law Maker”(1972) 12 Journal for the Society of Public Teachers of Law 22at22Google Scholar.
112 L McDonald, above n 3 at 191.
113 Sir Owen Dixon, “Address upon taking the oath of office” reproduced in (1952) 85 CLR xi at xiv.
114 L McDonald, above n 3 at 186.
115 Accidental because courts are unable to initiate proceedings.
116 Zines, L, The High Court and the Constitution (4th ed, 1997) 433-444Google Scholar.
117 Coper argues that the High Court's “accountability comes about through professional and public scrutiny of its decisions”: Coper, M, “The High Court and Free Speech:Visions of Democracy or Delusions of Grandeur?”(1994) 16 Syd LR 185 at 191Google Scholar.
118 The influence of the “post-modem age” is considered by B Fitzgerald, above n 2 at 287, 314 and 319-321.
119 G Evans, “The Most Dangerous Branch? The High Court and the Constitution in a Changing Society”in D Hambly and J Goldring (eds), Australian Lawyers and Social Change (1976) 13 at 37.Evans' “racy dogmatism”has been described by Gageler as “wholly objectionable”:S Gageler,above n 97 at 195.
120 Justice Mason, “The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience”(1986) 16 F L Rev 1 at 5: “it is impossible to interpret any instrument,let alone a constitution,divorced from values”. See also McHughJ, “The Law-making Function of the Judicial Process - Part II” (1988) 62 ALJ 116 at 124: “policy factors are decisive in hard cases”.
121 Doyle, J, “Common Law Rights and Democratic Rights”in P Finn (ed), Essays on Law and Government (1995) 144 at 152Google Scholar.
122 “[I]t is clear that judicial development of the common law is a function different from judicial interpretation of statutes and of the Constitution” (1994) 182 CLR 104 at 143.
123 J Doyle,above n 121 at 147 (writing before his appointment as Chief Justice of South Australia).
124 G Winterton,above n 31 at 136.An analogous observation was made earlier in this article in relation to interpretation in accordance with either a “statute” or “compact” view of the Constitution. See text accompanying nn 85-91 above.
125 L McDonald,above n 3 at 182.
126 B Fitzgerald,above n 2 at 285.
127 P Finn,above n 19 at 9-10 (notes omitted).
128 See Part II of this article.
129 (1994) 182 CLR 272 at 361.Dawson J cited H Moore, The Constitution of the Commonwealth of Australia (2nd ed1910) at 614-615 and JA La Nauze, The Making of the Australian Constitution (1972) at 227.
130 (1992) 177 CLR 106 at 136 citing O Dixon, Jesting Pilate (1965) 100 at 102.
131 Ibid.
132 (1994) 182 CLR 104 at 167.
133 (1912) 16 CLR 99.
134 Ibid at 108,citing Miller Jin Crande1l v State of Nevada 73 US 35 at 44 (1867).
135 (1994) 182 CLR 104 at 169.
136 (1994) 182 CLR 104 at 168: 11[I]n a constitutional context, the word 'rights' is commonly used as referring not only to rights in the sense of expressly conferred free standing rights enforceable against either the world or particular persons who are under a corresponding duty but also to privileges and immunities which are inherent in, or flow from, constitutional restrictions upon legislative, executive or judicial power. It is in that broad sense that the word is used when the phrase 'Bill of Rights' is applied to the first ten or fourteen Amendments of the United States Constitution”.
137 Fraser, A,“In Defence of Republicanism:A Reply to George Williams”(1995) 23 FL Rev 362 at 369Google Scholar,replying to Williams, G, “A Republican Tradition for Australia?”(1995) 23 F L Rev 133Google Scholar.
138 kBaker v Campbell (1983) 153 CLR 52 at 120 per Deane J.
139 L McDonald,above n 3 at 183-184.
140 Theophanous (1994) 182 CLR 104 at 172.
141 Williams, J M, “'With Eyes Open': Andrew Inglis Clark and Our Republican Tradition” (1995) 23 FL Rev 149 at 179Google Scholar (note omitted).
142 Ibid at 178.
143 Winterton, G, Parliament, the Executive and the Governor-General: A Constitutional Analysis (1983) at 1Google Scholar.
144 “[E]ither responsible government will kill federation or federation will … kill responsible government”: J Hackett, Official Record of the Debates of the Australasian Federal Convention (Sydney 1891) (Legal Books edition 1986), Vol I at 280.
145 G Winterton, above n 143 at 1.
146 Theophanous (1994) 182 CLR 104 at 171.
147 Ibid. Cf Theophanous (1994) 182 CLR 104 at 128 per Mason CJ, Toohey and Gaudron JJ;at 197 per McHughJ. See also McGinty (1996) 186 CLR 140 at 281 per Gummow J.
148 I Clark, Studies in Australian Constitutional Law (1901) at 21-22 cited in Theophanous (1994) 182 CLR 104 at 171 per Deane J.
149 Recent Australian contributions include S Donaghue, “The Clamour of Silent Constitutional Principles” (1996) 24 FL Rev 133; J Goldsworthy, “Implications in Language,Law and the Constitution” in G Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150; G Craven, “Original Intent and the Australian Constitution – Coming Soon to a Court Near You?” (1990) 1 PLR 166; P Schoff, “The High Court and History: It Still Hasn't Found(ed) What It's Looking For” (1994) 5 PLR 253.
150 Theophanous (1994) 182 CLR 104 at 168. Cf Sir Anthony Mason, “The Interpretation of a Constitution in a Modern Liberal Democracy” in C Sampford and K Preston (eds) Interpreting Constitutions (1996) 13 at 13; S Donaghue, ibid at 151-153.
151 Primarily because the very point of having a Constitution is undermined. “Our peculiar security is the possession of a written Constitution. Let us not make it blank paper by construction.” T Jefferson, Writings of Thomas Jefferson (Forded 1892) at 247 cited by Justice Kirby, “The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms” (1988) 62 ALJ 514 at 521. Cf A Scalia, “Originalism: The Lesser Evil” (1989) 57 Cincinnati LR 849 at 862 cited by J Goldsworthy “Originalism in Constitutional Interpretation”(1997) 25 F L Rev 1 at 43 n 218.
152 Although Australian parliaments are more accurately described as “supreme” rather than “sovereign”(see n 34 above),this observation does little to mitigate fears that Dicey's theory allows for,and justifies the excesses of,majoritarianism. This is because within the heads of power outlined in the Constitution, the Commonwealth powers are traditionally regarded as plenary. And,although under the Constitution, s 109 State laws are invalid to the extent that they conflict with validly passed Commonwealth laws, absentsuch a conflict State legislative powers are also absolute.
153 Compare with Building Construction Employees and Builders' Labourers Federation of Ne-w South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372 at 402 per Kirby P.
154 Allan, T R S, “The Limits of Parliamentary Sovereignty”[1985] Public Law 614Google Scholar.
155 A V Dicey, above n 23 at 81, citing L Stephen, Science of Ethics (1882) at 143.
156 Compare with submissions in Levy, High Court, 6 August 1996 at 5 and 8. Gummow J commented (at 12) that “[g]rand abstractions tend to be misleading”.
157 S Lee, “Comment II”, comment on TR S Allan, above n 154 at 633.
158 L Tribe,above n 106 at 61.Tribe makes reference to E Nagel and J Newman, Godel's Proof (1958).
159 B Fitzgerald, above n 2 at 265 (note omitted).
160 Baker v Campbell (1983) 153 CLR 52 at 120.
161 (1992) 174 CLR 455 at 484.Cf Metwally (1984) 158 CLR 447 at 476-77 per Deane J.
162 S Gageler,above n 97 at 167.
163 G Wood,above n 43 at [559].
164 S Gageler,above n 97 at 171.
165 (1610) 8 Co Rep 113b at 118a,77 ER 646 at 652 per Coke CJ.
166 B Schwartz,above n 1 at 57.
167 Partlett, D, “From Red Lion Square to Skokie to the Fatal Shore:Racial Defamation and Freedom of Speech”(1989)Vanderbilt Journal of Transnational Law 431 at 444Google Scholar.
168 B Wise, The Commonwealth of Australia (1909) at 51, cited by S Gageler, above n 97 at 171.
169 F Schauer, Free Speech:: a Philosophical Enquiry (1982) at 86, cited by Chesterman, M, “The Money or the Truth:Defamation Reform in Australia and the USA”(1995) 18 UNSWLJ 300 at 315Google Scholar.
170 Justice Kirby,above n 102 at 195.
171 In relation to the intentions of the framers, see discussion above text at nn 146-151.
172 For a summary of the CLS attitude to rights see R Delgado, “The Ethereal Scholar: Does Critical Studies Have What Minorities Want?” (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 301. Cf Williams, P, “Alchemical Notes: Reconstructing Ideals From Deconstructed Rights” (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 401 at 409Google Scholar.
173 Brennan, F, “An Australian Convert From a Constitutional Bill of Rights” (1996) 7 PLR 132 at 133Google Scholar.
174 J Thomson, “An Australian Bill of Rights: Glorious Promises, Concealed Dangers” (1994) 19 MULR 1020 at 1056. According to Fraser “[t]he High Court has yet to recognise the constitutional dangers inherent in the political reality of concentrated corporate power and the growth of global media empires”: A Fraser, above n 6 at 227. Commenting on ACTV, Campbell argued that it is “only by discounting the disproportionate influence of wealth is it possible to consider that the enacted reforms [Broadcasting Services Act 1992 (Cth),Part IIID] did not provide an appropriate move towards a 'more even playing field"': T Campbell, above n 6 at 206.
175 Sampford, C, “Law, Institutions and the Public/Private Divide” (1991) 20 FL Rev 185 at 205Google Scholar.
176 Theophanous (1994) 182 CLR 104.
177 Ibid at 185.
178 Commonwealth Parliament Joint Standing Committee on Electoral Matters, vVho Pays the Piper Calls the Tune (1989).
179 T Campbell,above n 6 at 208.
180 Justice Kirby,above n 32 at 256.
181 G Williams,above n 137 at 147-148.
182 See also A Fraser,above n 6 at '227.
183 G Lindell,above n 100 at 103.
184 Finn,above n 19 at 16.
185 Ibid at 18.
186 Ibid at 18-20.
187 Ibid at 15.
188 Sir Mason, Anthony, “tTrends in Constitutional Interpretation” (1995) 18 UNSWLJ 237 at 242Google Scholar.
189 Ibid at 243.See Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983)158 CLR 1.
190 Wade has noted that “[t]he closer judges come to constitutional bedrock the more prone to disorientation they seem to be”: H R W Wade and C Forsyth, Administrative Law, (7 ed 1994) at vi, cited by Justice Kirby, “The Struggle For Simplicity — Lord Cooke and Fundamental Rights”, speech delivered at the New Zealand Legal Research Foundation, 4- 5 April 1997 at 59.
191 As Dixon J stated in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 at 82, “[i]t is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described, but whether they are compelling.” In a similarly open characterisation, Sir Anthony Mason has referred to judgment as involving “objective and principled elaboration”: A Mason, “The Role of a Constitutional Court in a Federation: a Comparison of the Australian and the United States Experience” (1986) 16 FL Rev 1 at 28.