speeches frenchj1a

Document Sample
speeches frenchj1a Powered By Docstoc
					                        THE CONSTITUTION AND THE PEOPLE

                                         Justice RS French


Introduction
         To read the Australian Constitution is not to experience a significant sense of
moral uplift. It sets out no ringing declaration of shared values nor statement of
fundamental human rights and freedoms protected by it.                         There is no historical
catharsis, no revolutionary big bang from which our nationhood emerged and
expanded. Indeed, there is still debate about when Australia became a nation,1 not
least for the purpose of determining who are its people and who are aliens.2 Despite
its lack of inspirational qualities and originating drama it is the document which sets
the framework within which Australia is governed and it has helped to deliver stable
government in this country for over 100 years. As democratic constitutions go,
Australia’s is now of respectable age.


         With 100 years of experience in interpreting and operating within the
constitution, Australian courts and other governmental institutions still find much
room for debate about its nature and meaning and even about the ways in which it
should be interpreted.3 In particular, there are still open questions about the source of
the authority of the Constitution and, connected with that, the way in which the people
of Australia figure in it and ground that authority. It raises pressing questions in
today’s world about what it is to belong to the Australian community, the concept of
citizenship and the relationship of Australia to its indigenous people. This paper
considers some of these issues.


A Brief Pre-History


1
   See Winterton: The Acquisition of Independence Ch 3, This Collection
2
   Re Patterson Ex parte Taylor (2001) 182 ALR 657 and Re Minister for Immigration and
Multicultural Affairs; Ex parte Te [2002] HCA 48
3
   There is a plethora of literature on this topic, see eg – Craven, The Crisis of Constitutional Literalism
in Australia, Lee and Winterton (eds) Australian Constitutional Perspectives, LBC 1992 p 1-32;
Mason, Trends in Constitutional Interpretation (1995) 18 UNSW Law Journal 237-249; Patapan H;
The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and
Freedoms (1997) 25 Fed Law Review 211-235; Goldsworthy, Interpreting the Constitution in its
Second Century (2000) 24 MULR 677-710; Kirby M, Constitutional Interpretation and Original
Intent: A Form of Ancestor Worship (2000) 24 MULR 1-14; Meagher, The Validity of Non-Originalism
as a Theory of Interpretation of the Australian Constitution (2002) 24 Syd Law Rev 141-188
                                                  2



        Australia's constitutional history, from the perspective of its colonisers, began
with the taking of the possession of the eastern part of the continent by James Cook in
1770.4 In 1786, New South Wales was designated as a place to which British convicts
might be transported.5 In 1788 Governor Philip arrived in that colony as the
embodiment of the authority of the British Crown,6 the same year that thirteen
American colonies voted upon the Constitution of the United States. 1823 saw the
first appointed local legislative body in New South Wales and the establishment in
that colony of a Supreme Court.7 Tasmania was separated from New South Wales in
1825.8 A partly elective legislative body was created for New South Wales in 1842
under the Australian Constitutions Act 1842, an Imperial Statute which provided for
the establishment of a Representative Legislative Council for New South Wales and
Van Dieman's Land.9 Because transportation was continuing in Van Diemen's Land,
representative government was not extended to it until 1854.


        Following a report by a committee of the Privy Council in 1849, which
inquired into the constitutional position of the Australian Colonies, the Australian
Constitutions Act 1850 (Imp) was passed. It provided for the enactment and alteration
by colonial legislatures of their own constitutions. It also provided for the separation
of Victoria from New South Wales which took effect in January 1851. In 1854 the
Legislative Council of Tasmania enacted a Constitution Act in terms authorised by the
1850 Act. It became effective upon receiving the Royal Assent. It established a bi-
cameral legislature.10 In 1855, common form constitutions were established in New
South Wales and Victoria albeit they exceeded the powers conferred by the 1850
statute in respect of the waste lands of the Crown and required express statutory
authorisation by the UK Parliament. Responsible government was adopted within the
framework of those constitutions as a matter of convention.                        The Australian


4
  See generally RD Lumb, The Constitutions of the Australian States, University of Queensland Press
4th Edition (1977) Chapter 1
5
  Declaration by Order in Council in 1786 pursuant to 24 Geo III c 56 (1784)
6
  Derived from 27 Geo III c 2 (1787) providing that the Governor should have authority from time to
time to constitute a Court of Civil Justice, Quaere whether it allowed establishment of a civil
government.
7
  Pursuant to the Imperial Statute Geo IV c 96
8
  This occurred by Order in Council pursuant to s 44 of the Act of 1823 which authorised separation of
Van Dieman's Land from New South Wales.
9
  5 and 6 Vic c 76 (1842)
                                                  3


Constitutions Act 1842 and 1850 authorised the creation of Queensland out of New
South Wales as a separate colony on the Petition of householders of the area above the
30 degree of south latitude. The separation was effected by Letters Patent in 1859 and
an Order in Council of that year established the constitution of the colony in terms
similar to that of the 1855 New South Wales Constitution. South Australia was
created as a province in 1834 by Imperial statute.11 That statute authorised the King in
Council to take necessary steps to establish a legislative body whose enactments were
to be the subject of disallowance. The Act was repealed and replaced by another
Imperial Statute in 1842.12 It authorised the establishment of a bi-cameral legislature.
South Australia was covered by the Australian Constitutions Act 1850 and a
Legislative Council with representative government set up in July 1851.
Subsequently a South Australian Constitution Act 1855 was passed by the South
Australian Legislature and received royal assent.13


        Western Australia was established as a colony by an Imperial statute in 1829
but did not achieve representative government until 1890 when the Constitution Act
1889 was authorised by Imperial Statute. It established a bi-cameral legislature,
including a nominated Legislative Council. That was replaced by an elective Council
in 1893.14 The Constitution Act 1899 passed by the Western Australian Parliament
consolidated its predecessor enactments.


        The Colonial Constitutions whose development is outlined above, all derived
their legal authority directly or indirectly from Acts of the Imperial Parliament. They
did not however spring fully formed from the brow of Britannia. They were the result
of local initiatives by the colonists. Indeed attempts by Earl Grey to develop "top
down" constitutional models including provision for an inter-colonial General
Assembly came to grief for want of local support.


        In a despatch of 31 July 1847, Earl Grey had foreshadowed the Australian
Constitutions Act 1850.         He proposed a number of matters including a General

10
   18 Vic No 17
11
   "An Act to empower his Majesty to erect South Australia into a British province or provinces, and to
provide for the colonisation and government thereof" - 4 and 5 Will, IVc 95.
12
   5 and 6 Vict c 61
13
   South Australian Constitution Act (No 2) 1855-56
                                                4


Assembly to deal with matters of common Australian interest. The despatch was
greeted in New South Wales "with a storm of indignation".15 The colonists had not
been consulted about the constitutional changes proposed. They were "especially
alarmed at the suggestion of indirect election which would take away the instalment
of representative institutions which they had lately won". In the debate that followed
however little was said about the federal proposal. When mentioned at all it was
"…usually in a tone of mild approval - as being unobjectionable, and possibly even
useful, but of little immediate importance".16


        On 31 July 1848, in another despatch Earl Grey said he had no wish to impose
unwelcome constitutional changes.           He maintained the idea of an inter-colonial
legislature pointing out, in particular, the extreme inconvenience of tariff differences
generated by independent legislatures. The Privy Council Committee in 1849 also
addressed the tariff question arising from the establishment of separate legislatures in
each of the colonies. It recommended a uniform tariff and that one of the Governors
of the Australian Colonies should always hold a commission constituting him
Governor-General of Australia. The Committee recommended he be authorised to
convene a body to be called "The General Assembly of Australia". The General
Assembly was to have legislative power on a number of matters.


        In the event the General Assembly proposal did not proceed. The federal
clauses were rejected in the United Kingdom Parliament on the bases that they had
not been asked for, that they were opposed by the colonies and that the scheme was
premature.17 Even though the federal idea did not proceed at that time, when Earl
Grey commissioned Sir Charles Fitzroy as Governor of New South Wales he gave
him four separate commissions appointing him Governor of each of New South
Wales, Tasmania, South Australia and Victoria and another commission appointing
him "Governor-General of all her Majesty's Australian possessions including the
colony of Western Australia". Quick and Garran observed:




14
   Constitution Amendment Act 1893 57 Vict No 14
15
   The Annotated Constitution of the Australian Commonwealth, Quick and Garran p 82
16
   Ibid p 82
17
   Ibid at 87
                                                    5


           "The Governor of New South Wales was thus constituted a sort of advisory
           overlord of the whole of Australia …."

A kind of Federal Executive was in name at least actually constituted. The movement
towards federation thereafter came from within Australia. For as Professor Lumb has
observed:


           The co-existence of six colonies on the Australian continent independent of
           each other in local policies, although united by common law, nationality and
           similar institutions of government, could not be the basis for a permanent
           constitutional system."

The "nationality" cited by Professor Lumb as a unifying factor among the colonists
was no doubt a reference to their common status as British subjects. There was a
wider perception of a people or race mixed up with the concept of nationality which
developed over this time. Bob Birrell observes in his Federation: The Secret Story
that at the turn of the nineteenth century Australians used the term "people" or "race"
interchangeably. Alfred Deakin, in 1901, introducing the Immigration Restriction Act
1901 which was to be the buttress of the white Australia policy, spoke of a desire to
be one people without the admixture of other races which he described as a "note of
nationality".18 It reflected what he described as an aspiration for "a shared sense of
peoplehood…to be expected from a nationalist initiating the process of nation-
building."19


The Conventions
           Conventions of colonial representatives came together to discuss and draft an
Australian Federal Constitution in the 1890s.                  The concerns that brought them
together involved foreign affairs, immigration, defence, trade and commerce and
industrial relations. France and Germany had been active in the region in the 1880s.
The French had begun to colonise New Caledonia and Vanuatu. Germany colonised
portion of New Guinea in spite of an abortive attempt by the Premier of Queensland
to annex it, an attempt disclaimed by the United Kingdom government. Broadly
speaking, the impulse to federation derived from concerns about these developments,
the need for an Australian Defence Force, the desire to keep Australia white and the


18
     Birrell, Federation: The Secret Story, Duffy and Snellgrove (2001) at p 287
                                                 6


impact of strikes which spread from one colony to another. There were trade barriers
between the colonies which were the subject of much debate between free traders and
protectionists. And as the Constitutional Commission said in 1987:


        "There was also a self-confidence in Australia which was probably a factor in
        the push for Australia to become a nation. This self-confidence was largely
        due to economic prosperity. It was reinforced by Australian cricketers who
        showed they could beat Great Britain at her own game, and by Australian
        artists, writers and poets and agricultural investors." 20

        A formal first step, which flowed from an Intercolonial Convention held in
Sydney in 1883 was the establishment of the Federal Council of Australasia. This
was done by an Imperial Statute.21            It comprised the Australian Colonies, New
Zealand and Fiji. In the event that Council failed. Neither New South Wales nor
New Zealand attended any of its meetings. Fiji came to one. South Australia only
participated between 1889 and 1891. As Professor Sharwood observed, its authority
was limited, it had no executive and no revenue and was branded as a Victorian
invention foisted on the other colonies.22


        In 1889 however, Sir Henry Parkes, dismissing the Federal Council as “a
rickety body”, proposed an Intercolonial Conference to frame a constitution claiming
that the Federal Council was "a rickety body". After various vicissitudes a conference
was convened in Melbourne in February 1890. It was resolved to open the conference
to the public, a step of which Professor Sharwood said:


        "This may well have been one of the most important decisions the conference
        was to make, as it allowed for extensive, even lavish press coverage of its
        proceedings." 23

It was at this conference during a banquet held on 6 February 1890 at Parliament
House in Melbourne that Parkes, responding to a toast, coined the famous phrase:



19
   Ibid at 287
20
   Australia's Constitution - Time to Update, Summary of the Report of the Advisory Committees to
the Constitutional Commission 1987 pp 7-8
21
   48 and 49 Vict c 60
22
   Sharwood, The Australian Federal Conference of 1890, Craven (ed) The Convention Debates -
Commentaries, Indices and Guide Vol 6 p 41-42
                                                 7


        "The crimson thread of kinship runs through us all."


This was an adaptation and toning down of a metaphor which he had used at the
opening of the Sydney/Brisbane railway in 1889 at which he spoke of "the crimson
fluid of kinship pulsing through all iron veins".24 After much debate on Thursday, 13
February 1890, the Conference passed a motion in the following terms:


        "That in the opinion of this Conference, the best interests and the present and
        future prosperity of the Australian colonies will be promoted by an early union
        under the Crown, and while fully recognising the valuable services of the
        Members of the Convention of 1883 in founding the Federal Council, it
        declares its opinion that the seven years which have elapsed have developed
        the national life of Australia in population, in wealth, in the discovery of
        resources, and in self-governing capacity, to an extent which justifies the
        higher act, at all times contemplated of the union of these colonies, under one
        legislative and executive government on principles just to the several
        colonies."


It was then resolved on Deakin's motion that the members of the conference should
take such steps as might be necessary to persuade the Legislatures of their respective
colonies to appoint delegates to a National Australasian Convention empowered to
consider and report upon an adequate scheme for a federal constitution. In the event
the Conference led to the establishment of the 1891 Convention comprising delegates
elected by colonial parliaments and held in Sydney.


        The critical importance of popular support for any constitutional proposal was
formally recognised early in the Convention. On the second day at Sydney on 3
March 1891 when a motion was debated that the press and the public be admitted,
George Dibbs MP, one of the six delegates from New South Wales said:


        "We want to build up a nation, and in order to do so we must take into our
        confidence the people who are the principal factors and the press also."25

The initial focus of the debates was on resolutions submitted by the Chairman of the
Convention, Sir Henry Parkes, which set out the essential principles of the proposed

23
   Sharwood op cit at p 52
24
   Sharwood op cit at p 55 citing Crowley F, Colonial Australia 1875-1900, Nelson, 1980 pp 290-291
25
   Conv Deb, Syd, 1891 p 12
                                                    8


Commonwealth Constitution.26 On the second day of the debate on the resolutions,
Alfred Deakin reminded the delegates that the people would determine the fate of
their proposals:

          "We know from the outset the bar of public opinion before which we are to be
          judged, and we know from the commencement of our labours that the
          conclusion of them rests in other hands than ours - in hands of no less a body
          than the assembled peoples of all the Australasian colonies." 27



This required a consideration not only of the interests of the people as a whole:


          "…but also the different and sometimes conflicting localisms which are
          created owing to the fact that this people is at present bound up with artificial
          boundaries into a certain number of communities." 28

Deakin and the other delegates, when referring to the people who would determine by
referendum the acceptability of any proposed constitution, referred to the electors of
the various colonies. These were defined by the franchises applicable in the colonies.
At that time women did not have the vote in any of the colonies although they
acquired the franchise in South Australia and Western Australia in 1894 and 1899
respectively. And although Aboriginal people were entitled to vote in New South
Wales, Victoria, South Australia and Tasmania, they were excluded if in receipt of
charitable aid. Western Australia and Queensland denied the vote to "any Aboriginal
native of Australia, Asia or Africa or person of the half blood" save for those who
satisfied a property qualification.


          The place of indigenous people was little mentioned in 1891 save by Captain
Russell, the New Zealand Minister for Defence, who proposed a very loose federation
and cautioned against federal interference with outlying areas. In that context he said
of New Zealand and its Maori peoples:


          "…we, in our own colony, have what may be determined a foreign policy, in as
          much as we deal with an alien race, that we have laws affecting them, that the
          questions of native title are matters of very grave moment and that any
26
     Conv Deb, Syd, 1891 p 23. See Appendix 1 to this paper for the resolutions.
27
     Conv Deb, Syd, 1891 p 70
28
     Conv Deb, Syd, 1891 p 70
                                              9


          interruption in our relations with these people might be of the most serious
          importance to the colony."

He observed by contrast, that "…it is true that the native races of the more settled
portions of Australia have given you but little trouble, and you have dealt with them
summarily, but possibly when you go to Northern Australia, you may find a race more
resolute and more difficult to deal with."29 to which the Hon Thomas Playford MP of
South Australia called out "No".          These early debates disclosed a view of "the
people" confined by the culture of the time but capable of constituting a platform for
the proposition that the Constitution and the institutions which it proposed would have
to derive legitimacy from their support. This was emphasised by Deakin in speaking
of the necessity of direct election for the Senate, notwithstanding it would be the
States' House. In terms which resonate with contemporary debate about the mode of
election for an Australian President, he said:

          "I say that, however high the title, however lofty the claims, of the Senate, if it
          derives its origin from an indirect method of election, the representative
          character of its members cannot equal that of men who face the people
          directly, and win, in their own person, at the sword's point, and after fierce
          conflict, the confidence of a majority of the electors."

Although Sir Samuel Griffiths challenged him, he could not conceive of an entity
called the State apart from the peoples whose interest it embodied, nor could he
conceive anything within the State which could claim an equal authority with the final
verdict after solemn consideration of the majority of its citizens.30


          The Constitution Bill adopted by the 1891 Convention failed to gain
acceptance. Quick and Garran record:

          "It soon became clear that neither the parliaments nor the people would
          accept the work of the Convention as final."31

They attributed its failure to gain popular acceptance to "…a vague feeling of distrust
of the Constitution, as the work of a body somewhat conservative in composition,



29
     Conv Deb, Syd, 1891 p 66
30
     Conv Deb, Syd, 1891 p 74
31
     Quick and Garran at p 144
                                                  10


only indirectly representative of the people, and entrusted with no very definite or
detailed mandate even by the parliaments which created it."32


        It was, in the event, a popular movement which restored momentum to the
drive for federation. The 1891 Bill had opened the topic for discussion and raised
issues for debate.       Other facts came into play such as the apparent economic
interdependence of the colonies, the benefit of a co-operative approach and what
Quick and Garran called "…the folly of inter colonial barriers".


        The Corowa Conference of 1893 organised by the Australian Federation
League and the Australian Natives' Association passed a motion, moved by John
Quick, in the following terms:


        "That in the opinion of this conference the Legislature of each Australasian
        colony should pass an act providing for the election of representatives to
        attend a statutory convention or congress to consider and adopt a bill to
        establish a federal constitution for Australia and upon the adoption of such
        bill or measure it be submitted by some process of referendum to the verdict of
        each colony."

Helen Irving points out that while the resolution did not use the word "people", Quick
and Garran were to summarise it soon afterwards as if it did. They described the plan
it foreshadowed as the best guarantee of interest and confidence in a federal
constitution because it ensured that "the people should be asked to chose for
themselves the men to whom the task was to be entrusted."33 Again in language
which resonates with contemporary debate, Quick and Garran said:


        "The adherents of the parliamentary system had thought that the people would
        be less likely than the parliaments to select men who by ability and training
        were most suited for the work of constitution-making; but they had forgotten
        that more important even than the personnel of the convention was the public
        confidence in the convention.         The result showed that the chosen
        representatives of the people were for the most part those would have been
        the chosen representatives of the parliaments; but from the fact of their
        election by the people they had a power, and they enjoyed a confidence, which
        election by the parliaments could never have given them."

32
   Ibid at p 144
33
   Irving, To Constitute a Nation, A Cultural History of Australia's Constitution, Cambridge University
Press, 1999 at p 135 and citing Quick and Garran p 154
                                          11




           The Corowa plan was considered by the Premiers' Conference held in Hobart
in 1895. That conference decided that each colony would pass enabling acts to chose
ten delegates to meet in a convention to draft a federal constitution for consideration
by each colonial parliament. The Convention would reconvene to consider proposed
amendments and the constitution would be put to the people at a referendum before
being submitted to the Crown. Queensland and Western Australia opposed popular
election of delegates. It was agreed that this would not be mandatory. The colonies
could adopt their own means of selection. Because Queensland could not agree on the
mechanism for selection, it was unrepresented at the Second Federal Convention. The
Western Australian parliament chose its own delegates without reference to its
electors. As it turned out, in those colonies where direct election occurred most of
those elected to the Convention were serving or former politicians who would have
been chosen by their parliaments had that method of selection been adopted.34


           The legitimacy of the proposed constitution was seen by those who devised
the process for its adoption as critically dependent upon its acceptance by popular
vote.


           The drafting process to emerge from the new Convention which first met in
Adelaide in March 1897, involved consideration by all colonial parliaments with
amendments to be referred back to the Convention. The Convention reconvened in
Sydney in September 1897. There were some 286 amendments suggested by ten
Houses of Parliament. In the event the Sydney Convention closed before more than
half of the clauses of the Constitution had been considered. It resolved to convene its
final session at Melbourne on 20 January 1898. That session, which extended from 20
January to 17 March, was described by Quick and Garran as "the longest and most
important of all." The whole Bill was reconsidered and revised by the drafting
committee.




34
     Irving at p 142
                                          12


       The revised Constitution Bill having been adopted by the Convention in March
1898 it was, according to the enabling Acts, to be submitted to the electors of each of
the colonies. Referenda were held in Victoria, Tasmania and South Australia where it
was approved by majorities. But it did not obtain the minimum number of voters
required in New South Wales. Amendments were agreed at a Premiers' conference
held in Melbourne in January 1899 where all six colonies were represented. Further
referenda were required. These were held and the Bill was approved by electors in
New South Wales, Victoria, South Australia and Tasmania. Queensland approved it
in September 1899. Western Australia did not proceed to referendum at that time.
The five colonies which had approved the Bill then submitted it to the Imperial
Parliament together with addresses from their respective Legislatures. Subject to
changes to covering cls 5 and 6 and s 74 relating to appeals to the Privy Council from
the High Court, the Bill was passed by both the House of Commons and the House of
Lords. On 9 July 1900, it received the Royal Assent.


       Western Australian passed its Enabling Act in June and its referendum was
conducted on 31 July 1900.      By that referendum electors approved the proposed
constitution, 44,800 votes to 19,691 votes. Addresses to the Queen, praying that
Western Australia be included as an original State of the Commonwealth in the
proclamation of the Constitution, were passed on 21 August.


       In the referenda held in all the colonies to determine whether their people were
in favour of federation and the proposed Constitution, 52% of those eligible to vote
actually voted. 57% of those voting in New South Wales supported the federation,
along with 55% in Queensland, 94% in Victoria and Tasmania, 79% in South
Australia and, on 31 July 1900, 69% in Western Australia.


       On 17 September 1900, Her Majesty the Queen signed the Proclamation
establishing the Commonwealth as and from 1 January 1901. Quick and Garran
commented on the completion of the long process to federation:


       "The Commonwealth as few dared to hope it would, comes into existence
       complete from the first - "A Nation for a Continent and a Continent for a
       Nation". The delays at which federalists have chafed have been tedious, and
       perhaps dangerous, but they have been providential; they have given time for
                                                 13


        the gradual but sure development of the national spirit in the great colonies of
        Queensland and Western Australia and have prevented the establishment of a
        Commonwealth of Australia with half the continent of Australia left, for a time
        outside."


The Authority of the Constitution
        The formal legal authority of the Constitution on 1 January 1901 derived from
the legislative power of the Imperial Parliament. It was seen by Harrison-Moore as
"first and foremost a law declared by the Imperial Parliament to be 'binding on the
Courts, Judges and people of every State and of every part of the Commonwealth'."35
Inglis Clark described it as contained in a written document which is an Act of the
Imperial Parliament of the United Kingdom of Great Britain and Ireland. 36 Sir Owen
Dixon said of it:


        "It is not a supreme law purporting to obtain its force from the direct
        expression of a peoples inherent authority to constitute a government. It is a
        statute of the British Parliament enacted in the exercise of its legal sovereignty
        over the law everywhere in the King's dominions." 37

Dixon attached to this characterisation of the Constitution a consequence for
interpretation. The organs of government are simply institutions established by law.
On the other hand in the United States they are agents for the people who are the
source of the power.


        The position in 1900 was that the Constitution was seen to be legally binding
because of the status accorded to British Statutes as an original source of the law and
because of the supremacy accorded to those statutes.38 Sir Darryl Dawson in the
Australian Capital Television case39 reflected a similar view as the contemporary
reality of the Constitution:


        "No doubt it may be said as an abstract proposition of political theory that the
        Constitution ultimately depends for its continuing validity upon the acceptance
        of the people, but the same may be said of any form of government which is
35
   Harrison-Moore, The Constitution of the Commonwealth of Australia 2nd Edition (1910) Legal
Books (repr) 1977 p 66
36
   A Inglis Clark, Studies in Australian Constitutional Law (1901) Legal Books (repr) 1977 p 14
37
   Dixon, The Law and the Constitution (1935) 51 LQR 590 at p 597
38
   Lindell, Why is Australia's Constitution Binding? (1986) 16 Fed L Rev 29 at pp 32-33
39
   Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
                                            14


          not arbitrary. The legal foundation of the Australian Constitution is an
          exercise of sovereign power by the Imperial Parliament. The significance of
          this in the interpretation of the Constitution is that the Constitution is to be
          construed as a law passed pursuant to the legislative power to do so." 40

This approach was, of course, relevant to the question whether there could be implied
in the Constitution a freedom of political communication. Dawson J saw it as a
consequence of the legal character of the Constitution that implications must appear
from its terms and not from extrinsic circumstances.41           For his Honour "…the
interpretation of the Australian Constitution" was "the interpretation of a statute of the
Imperial Parliament".42 In a Newtonian universe of legal discourse this position is
quite comprehensible but the universe of constitutional discourse, like the physical
universe, has developed from the Newtonian to something more complex.


          An early departure from that original view of the source of legal authority for
the Constitution was expressed by Murphy J in Bistricic v Rokov43 where his Honour
said bluntly:


          "In my opinion (notwithstanding many statements to the contrary) Australia's
          independence and freedom from the United Kingdom Legislative Authority
          should be taken as dating from 1901. The United Kingdom Parliament ceased
          to be an Imperial Parliament in relation to Australia at the inauguration of the
          Commonwealth. Provisions of statutes directed to regulating the Imperial-
          Colonial relations … then ceased to be applicable. There are strong grounds
          for considering that cases which held Commonwealth legislation ultra vires
          because of inconsistency with any law other than the Constitution…were
          wrongly decided."44

Underpinning this, was the proposition that if the original authority for the
Constitution had been the United Kingdom Parliament, its existing authority "…is its
continuing acceptance by the Australian people."


          The acceptance as at 1901 of the Imperial Parliament as legal authority for the
Constitution is hardly surprising. It was entirely in accord with the way in which


40
     AC TV case at 181
41
     AC TV case at p 181
42
     AC TV case at p 183
43
     (1976) 135 CLR 522
44
     at p 567
                                             15


colonial constitutions had evolved. They received their stamp of legal legitimacy
either because they were authorised by a pre-existing Imperial Act or were authorised
by an Act specifically passed for that purpose.         All to a greater or lesser extent
however evolved from local movements for self-government.


Sovereignty and the Constitution
        The discussion that follows should not underestimate how large and for how
long the Imperial connection loomed in Australian constitutional jurisprudence. It
was given particular emphasis in R v Sharkey.45 That case concerned the validity,
under the defence power, of a law making it an offence to excite disaffection against
the sovereign or the government or the Constitution of the United Kingdom or against
either House of Parliament of the United Kingdom. Latham CJ saw the Government
and Constitution of the United Kingdom and its Houses of Parliament as "… part of
the legal and political constitution of the Commonwealth".46 Dixon J stated the
proposition a little more broadly.        He saw the provision as going to "…the
constitutional relations of Australia as part of the British Commonwealth the
established government of the United Kingdom".47 Webb J regarded the House of
Lords and the House of Commons as "…essential parts of the political and legal
organisation of Australia".48     The power reserved to the Imperial Parliament to
legislate for Australia, if so desired by Australia, was a sufficient indication of this.49


        Professor George Winterton cautions against resort to sovereignty as "a
notoriously ambiguous concept".        He refers to the legal source from which the
Constitution derives its authority and also the location of the power to amend the
Constitution. He questions the desirability of breaking the chain of legal authority
from the British Parliament:


        "…for the extra-legal realm is a world of legal fictions in which there are no
        boundaries except practically political power and theoretically the limits of
        imagination." 50


45
    (1949) 79 CLR 121
46
    at p 136
47
   at p 149
48
    at p 164
49
    at p 164
                                                16


        Notwithstanding the formal legal support for the Constitution of the
Commonwealth, the process which led to its enactment was directed, from the outset,
to winning over the popular will as a condition precedent to the enactment of any
authorising legislation by the United Kingdom Parliament.                 So "the people" are
acknowledged in the preamble as the actors of the fundamental agreement "to unite in
one indissoluble Commonwealth". They appear in that context as the people at that
time in history of the various colonies. The agreement founding the Constitution was
not expressed as an agreement between the colonies but between their people.51


        The historical process culminating in the agreement of the people gave to the
Constitution political legitimacy. But can it be said that the effect of that agreement,
as recognised in the preamble, went beyond the conferral of political legitimacy so
that even then the Constitution could be seen as deriving its legal authority for
Australia from the agreement of the people as a necessary condition, a juristic reality
acknowledged by the enabling Imperial Statute.


        The concept of sovereignty in a constitutional setting may appear in different
guises. At 1901 legislative supremacy rested with the Parliament of the United
Kingdom. But as Professor Zines points out, the nature of sovereignty of the people is
quite different and indeed could have co-existed with the proposition of British
sovereignty. So Mason CJ said in the ACTV case:


        "Despite its initial character as a statute of the Imperial Parliament, the
        Constitution brought into existence a system of representative government for
        Australia in which the elected representatives exercise sovereign power on
        behalf of the Australian people." 52

His Honour went on to point out that the Australia Act 1986 (UK) marked the end of
the legal sovereignty of the Imperial Parliament and recognised that ultimate
sovereignty resided in the Australian people.            The use of the term "recognised"
accepts the sovereignty of the people as a pre-existing reality.                There is in the
Constitution however, no direct mechanism which could be said to provide for the

50
   Winterton, Popular Sovereignty and Constitutional Continuity (1998) 26 Fed Law Rev 1 at p 7
51
   R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535 at 589; Kirmani v
Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 at p 442
52
   AC TV case at 138
                                               17


exercise of legal supremacy by "the people" whatever that term means. As Zines
points out, even those with the franchise, which now includes nearly all adult citizens,
cannot themselves alter the Constitution unless given the opportunity to do so by the
Legislature. Popular "sovereignty" is limited to the choice of representatives and the
approval or disapproval of proposed alterations to the Constitution put to it by its
representatives. And the content of the term the "people" has a different meaning or
composition for each of those two purposes.53


        Justice Selway of the Federal Court has considered the tension between the
formal model of legal sovereignty deriving from the British Parliament and popular
sovereignty in discussing what he calls the "top-down" view of the Constitution as the
product of Imperial enactment. This is contrasted with the view that the Constitution
was binding because of the consent of the people - the bottom-up view.54 As he puts
it however, it was not until relatively recently that the role of the people was
considered by the High Court to affect interpretation of the Constitution. Barwick CJ
                                       55
in Victoria v The Commonwealth              recognised the Constitution as the result of the
will and desire of the people of the colonies, expressed through referenda.
Nevertheless, he regarded their agreement as being expressed in the Act of the
Imperial Parliament.      What they gained was a "Statutory Constitution under the
Crown not a treaty or an agreement of union or a confederation of States."56


        The process of looking back to the nature of sovereignty under the Australian
Constitution as at 1901 may be thought academic in light of subsequent
developments, the Statute of Westminster and the Australia Acts of 1986 which, pace
Winterton, progressively cast off Australia's mooring lines to Imperial law. It is
questionable however, whether the concept of popular sovereignty should be seen as
emerging as a result of these events or as having any clearer meaning in their light
than it would have had if considered in 1901. The foundation of the Constitution
upon an agreement between the people and all relevant references to the people were
already in place in the Constitution at that time. Their embedding in its history and

53
   Zines, The High Court and the Constitution 4th Edition, pp 395-396
54
   Selway, Horizontal and Vertical Assumptions Within the Commonwealth Constitution (2001) 12
PLR 113 at pp 128-129
55
   (1971) 122 CLR 353 at p 370
56
   (1971) 122 CLR 353 at p 370
                                         18


their antecedent consent recognised in its terms, were seen as important in the
development of its interpretation by the "living force" exponent Inglis Clark, who
quoted an American jurist, Judge Cooly thus:


       "…as the people change, so does their written constitution change also. Many
       see it in new lights and with different eyes; events may have given unexpected
       illumination to some of its provisions, and what they read one way before, they
       read in a very different way now." 57

       The sovereignty of the people, considered as a way of designating
fundamental constitutional authority, has no ready definition which engages with the
distribution of powers between the arms of government and between Commonwealth
and States in the Constitution. It may support implications that flow from the system
of representative democracy for which the Constitution provides. In that sense it may
inform the construction of the Constitution. So those provisions of the Constitution
which provide for direct election of the Senate and House of Representatives by the
people (ss 7 and 24) and their participation in the process of alteration of the
Constitution will be seen as particular expressions or attributes of that sovereignty.


       It is sometimes said, in current cosmological theory, that, at the time of the
creation of the universe, radically different forces were unified as one and only
separated out as the universe expanded. So one might say that the exercise of legal
sovereignty by the British Parliament in passing the Constitution Act was so closely
connected with and dependant upon the consent of the people of the colonies, as they
were understood at that time, that their authority was, from the outset, a principle
informing the Constitution and becoming more pronounced as Australia's legal
independence from Britain evolved.


Who Were “The People”
       The idea of "the people" itself is ambulatory. Those who voted on the original
Constitution Bill in 1899 and 1900 were defined by a limited franchise. In reckoning
the numbers of peoples of the Commonwealth or of a State or other part of the
Commonwealth "Aboriginal natives" were not to be counted. This did not mean that
Aborigines were disenfranchised by the Commonwealth. That occurred by statute in
                                                 19


1902. Women gained the franchise in that year. And s 127 was deleted following a
referendum in May 1967. Aborigines received the Commonwealth franchise in 1962.
In the same year franchise restrictions were lifted in relation to Aborigines.
Queensland followed suit in 1965 and was the last State to do so. In the referendum
which deleted s 127, s 51(xxvi) was amended to delete the exclusion of Aboriginal
people from the scope of the race power.


          Our ways of looking at each other have evolved. That evolution is reflected in
the changing laws of the States and the Commonwealth and in the 1967 amendments
to the Constitution. Today all adults would be seen as "the people" for the purpose of
defining the authority that underpins the Constitution. and its expressions in the
processes of representative democracy and constitutional change. Even the notion of
what constitutes an "adult" has shifted its connotation from a person of the age of
twenty-one years or over to a person of the age of eighteen years or over. There is no
particular reason in principle why the class of adult persons could not be expanded by
further lowering the age at which a person is entitled to vote. It becomes a matter of
political judgment. It is to be noted however, as Mason J observed in Attorney-
General of the Commonwealth (Ex Rel McKinlay) v The Commonwealth (1975) 135
CLR 1:


          "…the Constitution does not guarantee or insist upon universal adult suffrage.
          Sections 25 and 30 recognize that people may be denied the right to vote by
          State law until Parliament otherwise provides or by a law of the
          Commonwealth Parliament…" 58

Gibbs J put it thus:

          "When the section says that the members shall be chosen "by the people" it
          cannot mean by all the people of the Commonwealth - obviously it means by
          those people who are qualified to vote…It clearly appears from other sections
          of the Constitution - ss 25, 30, 41 and 128 that it was recognised that people
          might constitutionally be denied the franchise on the ground of race, sex or
          lack of property - the Constitution goes no further than to ensure that an adult
          who has the right to vote at elections for the more numerous House of the
          Parliament of a State shall not be prevented by a law of the Commonwealth


57
     Inglis Clark at p 27 citing Cooly, Michigan - American Commonwealths pp 345-347
58
     135 CLR at 62
                                              20


        from voting at elections for either House of the Parliament of the
        Commonwealth." 59

It does not appear from these observations that popular sovereignty imports into the
Constitution a principle of adult universal suffrage for which the Constitution does not
otherwise provide.      But the class of the repositories of that "sovereignty" having
expanded it cannot as a matter of practical reality be contracted.


        Winterton60 illuminates the danger of severing the legal chain of authority by
considering the identity of "the people":

        "…there would seem to be two possibilities: the colonial electors who
        approved the draft constitution or the present Australian people who
        demonstrate their acceptance of the Constitution by complying with its
        provisions and living peaceably under it."

In my opinion however, the "people" of 1900 named a category capable of expansion
in constitutional discourse and authority.       The connotation of the term "people" has
shifted with the passage of time.


Popular Sovereignty and Community Values
        There is an arguable, albeit unstated connection between the acceptance of
popular sovereignty as underpinning the Constitution and resort by judges to
"contemporary community values" in developing the common law and construing
statute law.     There has been debate in recent years about the application of
contemporary community values in the development of the law.61 An important
example of their invocation is to be found in the judgment of Brennan J in Mabo (No
2).62 Discussing the duty of the High Court to declare the common law of Australia,
his Honour in that case acknowledged that Australian law is the historic successor of,
and an organic development from, the law of England. He saw it as not immaterial to
the resolution of the problem that presented itself in Mabo that since the Australia Act


59
   135 CLR at 24
60
   Winterton at p 7
61
   Braithwaite, Community Values and Australian Jurisprudence (1995) 17 Syd Law Rev at p 351;
Ziegert, Judicial Decision Making, Community and Consented Values: Some Remarks on Braithwaite's
Republican Model (1995) 17 Syd Law Rev at p 373; Krygier and Glass, Shaky Premises, Values
Attitudes and the Law (1995) 17 Syd Law Rev at p 385; Allars, Citizenship Theory and the Public
Confidence Rationale for the Bias Rule (2001) 18 Law in Context p 12
                                                 21


1986 had come into operation the law of Australia was entirely free of Imperial
control. In express application of his perception of community values, his Honour
said:


        "Whatever the justification advanced in earlier days for refusing to recognise
        the rights and interests in land of the indigenous inhabitants of settled
        colonies, an unjust and discriminatory doctrine of that kind can no longer be
        accepted. The expectations of the international community accord in this
        respect with the contemporary values of the Australian people."63

        In Dietrich v R64 Brennan J spoke of the ability of courts to mould the law to
correspond with the contemporary values of society.65 He developed his argument
thus:

        "The contemporary values which justify judicial development of the law are
        not the transient notions which emerge in reaction to a particular event or
        which are inspired by a publicity campaign conducted by an interest group.
        They are the relatively permanent values of the Australian community. Even if
        the perception of contemporary values is coloured by the opinions of
        individual judges, judicial experience in the practical application of legal
        principles and the coincidence of judicial opinions in appellate courts provide
        some assurance that those values are correctly perceived." 66

        It is not suggested that the references to community values in judgments of the
High Court in the last decade were inspired by theories of popular sovereignty. They
are, however, consonant with that concept and, to the extent the Constitution permits
reference to community values, may in accordance with authority in relation to the
development of the common law, inform its construction. This would sit comfortably
with the statement by Inglis Clark in 1901 of the proposition that "as the people
change, so does their written constitution change also".


        What changes on this approach are certain norms or values which inform the
construction of the Constitution, laws made under it and the development of the
common law. In this way it could be argued that popular sovereignty has a potentially
pervasive effect on the development of constitutional law and the laws made under the


62
     Mabo v Queensland (No 2) (1992) 175 CLR 1
63
    Mabo (No 2) at p 42
64
   (1992) 177 CLR 292
65
    Ibid at 319
                                             22


Constitution. That is not to say that the concept in this application is other than
slippery and hazardous. It may too readily lead judges into the development of rules
based on their own perceptions which, in any majoritorian sense, would be described
as lacking popular support. There is also the criticism advanced by Margaret Allars,
reflecting discussions by Braithwaite and others, that:


           "The list of community "values" which sociological research claims attract
           consensus are merely motherhood statements. It is not surprising that in
           surveys citizens agree almost unanimously that human dignity, protection of
           human life, wisdom, security for loved ones, good health and so forth are
           values they accept… Agreement with these values occurs in the absence of
           context and has no practical consequence. When quizzed regarding their
           beliefs about particular issues, called "attitudes", disagreement between
           citizens quickly becomes apparent. At the level of attitudes there is no
           consensus." 67

Sovereignty and Indigenous Peoples
           It is a feature of sovereignty that it tends to exclusivity. Supreme authority,
which is its essence, has that character. This is a difficulty underpinning debate about
a treaty with Australia’s indigenous people. It has been argued that implicit in the
nature of a treaty is recognition of another sovereignty, a nation within Australia.


           The common law of native title as enunciated in Mabo (No 2) did not involve
any yielding of sovereignty. It rested upon the non-justiciable proposition that the
Crown acquired sovereignty over the land upon its annexation of the Australian
colonies. The acquisition of that sovereignty however did not operate directly upon
the traditional laws and customs of indigenous people or the relationship with land
and waters to which they give rise. The common law in its recognition of those
traditional relationships with land does not do so. Nor do the statutory provisions of
the Native Title Act 1993 which provides for recognition and protection of native title,
validation of past invalid acts affecting native title and extinguishment of native title
in certain circumstances. To speak of recognition is in one sense to personify the law
and to attribute to it a cognitive function. Avoiding personification and cognitive
metaphors, recognition can be regarded as the outcome of the application of rules
under which certain rights arising at common law are ascertained which are vested in


66
     Ibid at 319
                                             23


an indigenous community by virtue of its relationship to land or waters.
Extinguishment by executive or legislative action is the result of the exercise of the
non-indigenous sovereignty which bars or qualifies common law recognition.
Importantly it has nothing to say about traditional law or custom or the relationship of
Aboriginal people to their land.


           There is a question whether the concepts of sovereignty so far discussed have
any relevance in describing the relationship between indigenous people and their
country under traditional law and custom and their relationships with each other.
Sovereignty is a colonising term. Nevertheless some indigenous leaders have used it
to designate what they maintain is their ongoing traditional responsibility for and
ownership of country. In Coe v The Commonwealth of Australia (1979) 53 ALJR 403
the applicant purported to sue on behalf of the Aboriginal community and nation of
Australia. He asserted membership of the Wiradjeri Tribe and authority from it and
other tribes and the whole Aboriginal community and nation to bring the action. He
pleaded inter alia:-


           “6A. Clans, tribes and groups of Aboriginal people travelled widely over the
           said continent now known as Australia developing a system of interlocking
           rights and responsibilities making contact with other tribes and larger groups
           of Aboriginal people thus forming a sovereign Aboriginal nation.”

           The High Court (Gibbs and Aicken JJ, Jacobs and Murphy JJ dissenting) held
that Mason J had rightly dismissed Mr Coe’s application for leave to amend his
statement of claim and that his appeal from that order should be dismissed. In so
holding Gibbs J acknowledged that the correctness of Milirppum v Nabalco Pty Ltd 68
which had denied that the common law could recognise rights and interests in land
held by Aboriginal people, would be an arguable question if properly raised. As to
the sovereignty claim he said:


           “The Aboriginal people are subject to the laws of the Commonwealth and of
           the State of Territories in which they respectively reside. They have no
           legislative, executive or judicial organs by which sovereignty might be
           exercised. If such organs existed, they would have no powers, except such as

67
     Allars, op cit at p 12
68
     (1971) 17 FLR 141
                                               24


          the law of the Commonwealth, or of a State or Territory, might confer upon
          them. The contention that there is in Australia an Aboriginal nation
          exercising sovereignty, even of a limited kind, is quite impossible, in law to
          maintain.” 69

Jacobs J said of those parts of the statement of claim which disputed the validity of
the Crown’s claim of sovereignty and sovereign possession that they were:


          “Not matters of municipal law but of the law of nations and are not cognisable
          in a court exercising jurisdiction under that sovereignty which is sought to be
          challenged.” 70

That judgment was given some thirteen years or so prior to Mabo (No 2). Revisiting
the Coe pleading in 1993 Mason CJ said:


          “Mabo [No 2] is entirely at odds with the notion that sovereignty adverse to
          the Crown resides in the Aboriginal people of Australia. The decision is
          equally at odds with the notion that there resides in the Aboriginal people a
          limited kind of sovereignty embraced in the notion that they are “a domestic
          dependent nation” entitled to self government and full rights … or that as a
          free and independent people they are entitled to any rights and interests other
          than those created or recognised by the laws of the Commonwealth, the State
          of New South Wales and the common law.”71

          The judgments cited make plain the irreconcilability of conflicting claims to
sovereignty.      That is not to say that the model of recognition derived from the
common law of native title may not be suggestive of an approach to an agreement
between the Commonwealth and indigenous Australians which does not involve any
compromise of sovereignty however that term is understood. Such an agreement
could recognise and acknowledge traditional law and custom of indigenous
communities across Australia, their historical relationship with their country, their
prior occupancy of the continent and that there are those who have maintained and
asserted their traditional rights to the present time. This is a cultural reality which can
be accepted without compromising, symbolically or otherwise, Australia's identity as
a nation. And if that traditional relationship should be asserted by some in terms of
sovereignty, that is sovereignty under traditional law and custom.           It may have

69
     53 ALJR at 408
70
     53 ALJR at 410
71
      Coe v The Commonwealth [1993] 68 ALJR 110 at 115.
                                               25


meaning in that universe of discourse. It can even be accepted in that context, without
being in any way inconsistent with the Commonwealth Constitution or the laws made
under it.


Citizenship
        Related to the idea of a "people of Australia" is the idea of citizenship. It is,
however, at most as elusive in definition as "the people". It may be taken to refer to a
legal status defined by a Constitution or statutes made under it. It can refer in a
broader sense to full membership in a particular political community. It may also be
described as desirable activity where the quality of one citizenship is a function of
ones participation in the community. So the 1994 Commonwealth Parliamentary
Committee on Migration defined citizenship as covering both a legal relationship to
the State and a spiritual sense of commitment to the State.72


        The content of citizenship beyond legal status is of significance to indigenous
Australians. The question arises whether, even with equal legal rights, indigenous
people in Australia are members on equal terms of this community. By criteria
applicable to health, education, general welfare and participation in the economy they
are not.    The issue of self-determination raises the question, already discussed,
whether rights particular to indigenous people, arising out of recognition of traditional
social organisation, including relationships to country, generate tensions with the
liberal democratic principles under which all Australian citizens are to have the same
rights. These may in the end become issues of recognition of pre-existing realities
able to be so expressed and explained rather than as the conferral of special rights or
privileges.73 This is an issue of substantive as distinct from formal citizenship. It may
be seen as part of a larger range of issues raised by multiculturalism and the extent to
which the retention of cultural identity derived from other countries is consistent with
citizenship as a full member of the Australian community. There is no doubt that
anxiety about these issues underlies contemporary debate about our immigration
inflow and, in particular, the arrival of boat people from the Middle East and other
parts of the world subject to war, oppression and civil disorder.


72
   See Chesterman and Galligan, Defining Australian Citizenship Selected Documents MUP (1999) pp
8-9
                                                  26



          The Constitution makes no reference to citizenship apart from citizenship of a
foreign power as a disqualification for election to parliament under s 44(1). It does
provide in s 117, a prohibition upon discrimination between subjects of the Queen
resident in different States. A precursor of s 117 adopted at the Adelaide session of
the Convention in 1897 provided:


          "A State shall not make or enforce any law abridging any privilege or
          immunity of citizens of other States of the Commonwealth, nor shall a State
          deny to any person within its jurisdiction, the equal protection of the laws."

At the Melbourne session in 1898, Quick moved that "citizen" should be defined in
the Constitution or otherwise that the Parliament should be empowered to make laws
with respect to citizenship. Neither proposal succeeded. There was long discussion
of the definition of citizenship. Opposition was based partly upon the argument,
emanating from Sir John Forrest of Western Australia, that the States should be able
to maintain discriminatory legislation against people of particular races and especially
the Chinese.        For citizenship would necessarily extend to British subjects who
included "coloured peoples".


          In the event, as Quick and Garran point out, the different gradings of political
status recognised by the Constitution are:


          Subjects of the Queen
          People of the Commonwealth
          People of a State


The people of the Commonwealth were those permanently domiciled within its
territorial limits. Constitutionally they were described as British subjects or subjects
of the Queen. They did not lose their character as people of the Commonwealth by
migrating from one State to another, any more than they would lose their national
character by migrating from one part of the Empire to another or sojourning in foreign
countries. Their privileges and immunities as people of the Commonwealth were


73
     See Citizenship and Indigenous Changes - Changing Conceptions and Possibilities Peterson and
                                              27


secured and guaranteed without regard to their residence in a particular State.74
Citizenship in the substantive sense was qualified by s 25 of the Constitution which
provided:


        "For the purposes of the last section, if by the law of any State all persons of
        any race are disqualified from voting at elections for the more numerous
        House of the Parliament of the State, then, in reckoning the number of the
        people of the State or of the Commonwealth, persons of that race resident in
        that State shall not be counted."

The section imposed a penalty on any State which disenfranchised persons of a
specific race. The penalty arose because the number of people of the State would
determine the number of members to be chosen for it under s 24 of the Constitution.
Its repeal was recommended in 1988 by the Constitutional Commission which
described it as "archaic" and "out moded".


        As a result of the constitutional silence on the question of citizenship, it
required statutory definition. There was no formal category of Australian citizen until
the passage of the Nationality and Citizenship Act 1948 (Cth). By s 10 a person born
in Australia after the commencement of the Act was to be an Australian citizen by
birth unless his or her father was an envoy of a foreign country and not an Australian
citizen or was an enemy alien. A person who was a British subject immediately prior
to the date of the commencement of the Act, on that date became an Australian citizen
if he or she was born in Australia and would have been an Australian citizen if s 10 of
the Act had been in force at the time of his birth. Arthur Calwell, introducing the
legislation, into the House of Representatives described it as marking "….another step
forward in the development of Australian nationhood". The Bill was not designed to
make an Australian any less a British subject "…but to help him to express his pride
in citizenship of this great country".75


        There was no statement of the rights of Australian citizenship embodied in the
legislation. The Citizenship Act covered Aboriginal people born in Australia as, by
virtue of their birth, they became Australian citizens. However, in 1948 only a small

Sanders (ed) Cambridge (1998) pp 123
74
   Quick and Garran at 957-958
75
   Parl Deb H of R V 198 30 Sept 1948 pp 1060,1062
                                            28


minority of them were entitled to vote in Federal and State elections or were eligible
to receive social security benefits. The Natives (Citizenship Rights) Act 1944 (WA)
provided for adult Aboriginal people to make application for Certificates of
Citizenship. The holder of a Certificate of Citizenship would be deemed to be "…no
longer a native or Aborigine and shall have all the rights, privileges and immunities
and shall be subject to the duties and liabilities of a natural born or naturalised subject
of his Majesty." The Act of 1948 eventually became the Australian Citizenship Act.
In 1984 the Act ceased automatically to make Australian citizens British subjects, and
from 1986 an applicant for citizenship no longer needed to renounce all other
allegiance. In 1993 references to the Monarch were dropped in the new "Pledge of
Commitment as a Citizen of the Commonwealth of Australia".


          Citizenship became part of the definition of the Australian people in a small
"c" constitutional sense. The term non-citizen is now applicable under the Migration
Act 1958 (Cth) to those who might formerly have been described as aliens. It was the
issue of citizenship, albeit of a foreign power, that recently and definitively confirmed
the severance of Australia's constitutional linkages to the United Kingdom. In Sue v
Hill76 the High Court, sitting as a Court of Disputed Returns, held a citizen of the
United Kingdom to be a subject or citizen of a foreign power within the meaning of s
44(1) of the Constitution.      The coincidence that the same person exercises regal
functions under the constitutional arrangements in the United Kingdom and Australia
did not deny the proposition that the United Kingdom is a foreign power within the
meaning of s 44(1). In the joint judgment of Gleeson CJ, Gummow and Hayne JJ it
was said, at 503:

          "Australia and the United Kingdom have their own laws as to nationality so
          that their citizens owe different allegiances. The United Kingdom has a
          distinct legal personality and its exercises of sovereignty, for example in
          entering military alliances, participating in armed conflicts and acceding to
          treaties such as the Treaty of Rome, themselves have no legal consequences
          for this country. Nor, as we have sought to demonstrate…does the United
          Kingdom exercise any function with respect to the governmental structures of
          the Commonwealth or the States."




76
     (1999) 199 CLR 462
                                           29


The latter statement is a measure of Australia’s movement from the concept of close
legal and constitutional integration with the United Kingdom in which the
Constitution was formed. That is short of a conversion to a Republic. That next step
awaits.
Conclusion
          There is no real controversy that in its beginnings the Constitution was
formally supported by the authority of the Imperial Parliament. However it derived
its legitimacy from a referendum of the people of the colonies albeit the concept of
“the people” was not as inclusive then as it is today. Popular support in an historically
narrow sense, was the sine qua non of the creation of the Commonwealth. With the
passage of the years the legitimising function of the initial referendum supported the
evolution of “the people” as the contemporary ground of constitutional authority and
in that sense the ultimate repository of sovereignty. The idea of popular authority or
sovereignty cannot be dismissed as a trivial statement of historical reality which has
nothing to say about the construction of the Constitution. The second and associated
element of the evolution of “popular sovereignty” is the widening of the concept of
“the people”. The inclusion of women and indigenous people has been in effect
constitutionalised by irreversible conventions reflected in the statutes and practices of
the Commonwealth and the States.
                                           30


                                     APPENDIX 1
          RESOLUTIONS PASSED AT 1891 SYDNEY CONVENTION


That in order to establish and secure an enduring foundation for the structure of a
federal government, the principles embodied in the resolutions following be agreed to:


(1)    That the powers and privileges and territorial rights of the several existing
       colonies shall remain intact, except in respect to such surrenders as may be
       agreed upon as necessary and incidental to the power and authority of the
       National Federal Government.


(2)    That the trade and intercourse between the federated colonies, whether by
       means of land carriage or coastal navigation, shall be absolutely free.


(3)    That the power and authority to impose customs duties shall be exclusively
       lodged in the Federal Government and Parliament, subject to such disposal of
       the revenues thence derived as shall be agreed upon.


(4)    That the military and naval defence of Australia shall be intrusted to federal
       forces, under one command.


Subject to these and other necessary provisions, this Convention approves of the
framing of a federal constitution, which shall establish, -


(1)    A parliament, to consist of a senate and a house of representatives, the former
       consisting of an equal number of members from each province, to be elected
       by a system which shall provide for the retirement of one-third of the members
       every     years, so securing to the body itself a perpetual existence combined
       with definite responsibility to the electors, the latter to be elected by districts
       formed on a population basis, and to possess the sole power of originating and
       amending all bills appropriating revenue or imposing taxation.
                                         31


(2)   A judiciary, consisting of a federal supreme court, which shall constitute a
      high court of appeal for Australia, under the direct authority of the Sovereign,
      whose decisions, as such, shall be final.


(3)   An executive, consisting of a governor-general and such persons as may from
      time to time be appointed as his advisers, such persons sitting in Parliament,
      and whose term of office shall depend upon their possessing the confidence of
      the house of representatives, expressed by the support of the majority.

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:5
posted:9/29/2012
language:Unknown
pages:31