Queensland
Constitutional Review
Commission

School of Law
Queensland University of Technology
GPO Box 2434 Brisbane Q 4001
24 September, 1999 Phone: 61 7 3864 2828
Fax: 61 7 3864 2121
Email: j.pyke@qut.edu.au

Queensland Electoral Reform Commission,
126 Margaret Street, Brisbane

Submission by John Pyke, Lecturer, QUT Law School, on

The Possible Reform of and Changes to... the Queensland Constitution

My dear Commissioners,

I happen to have been considering the form that the Constitution of a State should take for two purposes in the last month. Not only have you been calling for submissions, but the Key Centre for Ethics Law Justice and Governance (KCELJAG) at Griffith University is holding a Fulbright Symposium on the theme of "Beyond the Republic..." next week. I will be presenting a paper at that symposium on the topic of "Bills of Rights and the Expression of the Sovereignty of the People in a Constitution", which expresses my ideas on the preferred form of a Constitution for a State in a general essay form.

So to avoid writing the same thing twice in the same month, I attach a draft of the paper as a presentation of what I see as the general principles. I imagine you will be collating answers to the specific questions asked in your Issues Paper as well as seeking general musings on the philosophy of government, so in the body of this submission I will provide my answers to the specific questions, in the order in which they were posed in the Issues Paper except that I have put the fundamental issues raised in Chapters 5 and 10 first.. Where my answer to a particular issue overlaps with what I have said in the symposium paper, I will simply refer you to the paper.

Fundamental Issues- the Nature of a Constitution

Issues in Chapter 5

First two questions: There should be no provisions guaranteeing or protecting the supremacy of Parliament. The will of the people, not Parliament, should be supreme.

"If adopted, should the whole or certain parts of the Queensland Constitution be amended only by subsequent referendum?"

Yes, the whole! The Constitution of a State should become a real Constitution - an instrument of the people that controls the extent and distribution of government power, which is amendable only by referendum. This conforms with what people expect a Constitution to be. They do not expect it to be a "plum pudding" - most of it flexible with just the odd rigid "sixpences", made rigid by manner and form provisions, scattered through the structure in random places, which is a good description of the current Constitution Act 1867. They also do not expect it to be totally amendable by the Parliament, as Mr Beattie discovered from the public reaction when he floated that idea in July, and disavowed it in about ten days!

Of course, the Constitution should only contain provisions that are thought to be so important that they should not be changed without the people's approval; if some provision is not important enough to be entrenched, let it be part of an ordinary Act. As to content, I think that the LCAR Committee has got the topics and the level of generality about right in its draft Constitution of Queensland Bill, though I will indicate disagreement with it on some particulars, and suggest further things for inclusion, in the submissions below.

I know that a question will arise as to whether such a Constitution will actually be binding, once enacted. There are some people, especially in the Crown Law offices of the States, who still find the source of all principles in "Imperial" legislation and the writings of A V Dicey. They then find authority in section 2(2) of the Australia Act 1986 for taking a narrow view of s 6 of that Act, and suggest that a State can ignore any "manner and form" provision except when enacting a law "respecting the constitution, powers or procedure of the Parliament" - with that phrase narrowly interpreted. I suggest that section 106 of the Commonwealth Constitution actually provides the answer to these issues - a State Constitution continues until it is amended in accordance with the provisions of that Constitution, and if a State finally gives itself a proper Constitution, instead of a "plum pudding", nothing will be amendable without the approval of the people of the State.

"Should a requirement be added to the Constitution that no further provisions should be entrenched... unless their entrenchment was approved at a referendum?"

My answer to this follows from the previous one. If the whole Constitution is protected by a section like s 128 of the Commonwealth Constitution, it would necessarily follow that all new provisions would be entrenched once added, but that they could only be added by referendum.

One of the Issues in Chapter 10

"Should the Constitutional initiative and referendum by introduced in Queensland? How should the process be regulated?"

See the attachment. I submit that at least one of the following mechanisms for initiating Constitutional review and amendment should be included in a State Constitution:

• Proposal of amendments by initiative, or
• Regular Constitutional Conventions (regular meaning either that one must be held every 10 or 12 years, or at least that the people must be asked if one is required at similar intervals, and that it must then be held if they vote "yes" to that question).

I would prefer to see both, as is done in several American States, but if neither is introduced then the sovereignty of the people remains a misleading political slogan.

As to regulation of the initiative, all that is required is the specification of the number of signatures needed on a petition (as a percentage of the number of electors). Otherwise, the process really needs little regulation - the common sense of the people will reject absurd proposals. The process can be made fairly inexpensive by providing that referenda are to be held in conjunction with general elections.

Issues in Chapter 4

"Should any provision be added to the Constitution... concerning the Rule of Law?"

I doubt that there is any need to state the rule that no person is punishable except for a distinct breach of the law; that is well enough established in the common law and indeed in the Criminal Code.

However, there is the related and more general point that no officer of the executive has any coercive power over citizens (if I may use a republican-sounding word) unless the power is specifically granted by law - the rule in Entick v Carrington (1765). This also is well-established in the law, but one of the functions of a written Constitution is to remind members of the executive, who do not necessarily have law degrees, that they do not have absolute power. It would be good to expressly state this point.

Another established principle that is sometimes forgotten by the mighty, and by over-deferential police officers, is Dicey's second part of the rule of law. It may have a salutary effect on the administration of the law if the Constitution were to expressly state that no persons (by they Ministers, politicians, judges, professional persons or police officers, be they rich or poor) are immune from investigation and prosecution for suspected criminal offences. If this were included in the Constitution, copies of the section should be displayed at the front counter and in the detectives' room in every police station.

"Or should some special protection be given to the phrase's inclusion in the Legislative Standards Act?"

I do not understand what is envisaged here - a manner and form provision applying to a sub-section of the Legislative Standards Act? As I say in response to the Chapter 5 questions, any matter that should be given special protection should be included in the Constitution, which should have the status of superior law.

Issues in Chapter 6

"Apart from conventions concerning the reserve powers- are there any [Constitutional] conventions- which require attention - by codification or otherwise."

As to the executive government, I submit that the main things, currently unstated, that should be stated in the Constitution are the facts that

(1) the Governor does not in fact make the real executive decisions, but accepts the "advice" of the Cabinet/Executive Council, (compare the third para of proposed s 59 in the republic proposals for the Commonwealth) and
(2) that the appointment and dismissal of Ministers must be governed by the requirement that the Ministry/Cabinet should collectively have the support ("confidence") of the majority in the Assembly.

These should be stated expressly so that when ordinary people read the Constitution it actually explains to them how our government is conducted. At present, the main Constitution Act 1867 leaves the conduct of the executive government a mystery, and the Constitution (Office of Governor) Act tells some solemn and traditional lies. A Constitution ought to be something that can be put on a poster in a school room and understood by the children.

I suggest that the existence of the detailed minor conventions of responsible government should be adverted to but need not be codified. There are many points on which the exact convention is debateable (or perhaps the convention is that the Governor has a choice?) - eg after a general election leaves the balance of power in the hands of independents should the Governor wait until a meeting of Parliament before swearing in a new Premier, or should s/he judge who is likely to have the confidence of the House when it assembles, and appoint a new Premier straight away? The purpose of all of these practices is however, easy to state - that the Ministers should be those who have the "confidence" of the House. I suggest the inclusion of something along the lines of:

If this much is stated, then the question of codifying the reserve powers (Chapter 12) becomes less of a hot potato.

Issues in Chapter 7

Firstly, as to the process of removing a judge (not expressly asked as an Issue), I must say that the problem faced by the Gibbs Commission was of their own making - they started investigating every aspect of Vasta J's life, uncovered some conduct which may have been tax avoidance or may have been legitimate tax minimisation, decided that it was the former, called for the judge's dismissal and yet expressed some agony about the fact that their investigations led them into the judge's private financial affairs! I agree, but without much enthusiasm, with the suggestion on p 713 that a tribunal inquiring into a judge's conduct should be limited to grounds stated in the motion calling for the inquiry. [I note, however, that Trinidad and Tobago only limit the inquiry to the grounds stated by Parliament where the President is being investigated (s 36); they seem happy to have an unlimited inquiry into the conduct of a judge (s 137).]

"Should some (more) provisions protecting the independence of [listed] office holders be included?"

Indeed yes! It seems that the main sort of provision you are thinking of is something like the South African provision giving the members of the "State Institutions Supporting Constitutional Democracy" the same sort of protection of tenure that judges have. That is a sound idea in itself, but it can still be circumvented by starving the institutions of funds, enacting laws that reduce their jurisdiction, and so on (consider Mr Kennett's treatment of the Auditor-General, for example). I thought about this issue a couple of years ago when standing for election to the Constitutional Convention. I thought, "If we're going to have a President drawing an executive salary s/he should have a real job rather than simply presiding over Executive Council meetings and, between times, opening the odd conference or fete". So I suggested that the President should be given the role of defender of what I called "Institutions for Fairness and Honesty in Government", as well as the courts and the Parliamentary service. In State terms that would pretty much translate to the list of positions given on page 713. I suggested the following "jobs" for the President; you will note that in s 58(1) the assent was to be a real assent with a real discretion to give or withhold, whereas the role with respect to ordinary Bills in s 58(2) was simply the job of certifying that the law has been properly passed.

58. President's certification of Bills

(1) An Act shall not have any effect on the powers of, or be effective to appropriate money for:-

unless the President has assented to it becoming law.

(2) No Bill shall become law until the President has certified that he or she is satisfied that it has been duly passed by both Houses of Parliament, or has been passed in accordance with section 57.

64. Appointments to Institutions of Fairness and Honesty in Government

All appointments of senior officers of the Institutions of Fairness and Honesty in Government shall be made by the President on the recommendation of the Executive Council. If the President and Executive Council are unable to agree on the selection of a senior officer, the President may, where there is an urgent need for an appointment, appoint a person for a term of not more than one year.

83. Money to be appropriated by law.

No money shall be drawn from the Treasury except under appropriation made by law, except that where the President and the Parliament are unable to agree on an appropriation for any body mentioned in sub-section 58(1), the body may draw and spend money from month to month at the rate of one-twelfth of the last yearly appropriation made for the body.

I submit that provisions such as those, substituting "Governor" for "President" and "Legislative Assembly" for the various references to Parliament, are necessary for the protection of the independence and effectiveness of the various offices listed in the question. Some might say that this would involve the Governor in political disputes, but it would only be with the aim of protecting other people and institutions who fill the position of an impartial referee, like the Governor's own position. A government would only risk starting a dispute with the Governor if it proposed to do something deceptive or unfair - the mere existence of veto powers in the Governor would, I trust, deter governments from ever trying to "nobble" the institutions that should be neutral.

Issues in Chapter 8

"Are there any provisions of the proposed ... Constitution that limit or prevent the doctrine of representative democracy working satisfactorily?"

The basic problem here is that the proposal that nothing should be entrenched means that a future government might secure the passage of laws that interfere with representative democracy. Section 13 expressly (and unnecessarily) authorises the Parliament to change aspects of the electoral system; a government that wanted to reintroduce a gerrymander could well quote the section in justification.

"Are there any provisions which should be added... to protect or expand the operation of the doctrine of representative government?"

Yes. A Constitution of a democratic State should, as a bare minimum, contain entrenched provisions that guarantee:

• that all adult citizens should have the right to vote and to stand for election to office, subject only to reasonable and minimal disqualifications;
• the freedom to discuss and debate political issues and public affairs;
• a maximum term for the Parliament
• that the electoral system ought to be fair and that the basic principles of the methods of determining electoral boundaries and counting votes ought to be stated in the Constitution so that they cannot be changed without the approval of the majority of the electors.

Issues in Chapter 9

"Should any mechanism be introduced to ensure, as far as is possible, that a majority of votes will produce a majority of seats in the Legislative Assembly. If so, what should be that mechanism?"

Yes. For a start, a fairer outcome would be produced if the system allowed for electorates with multiple members elected by proportional representation. The myth that this provides more "hung" Parliaments and unstable government can easily be dispelled by comparing election outcomes in Tasmania and the ACT, on the one hand, with those in the States other than Tasmania over the last twenty years.

The number of electorates and the number of members per district should be both be odd. It makes sense to set the latter number at 7 or 9. With 5 per electorate, some electorates are still "safe" in the sense that reasonably-likely swings will produce no change in the representation, so parties are under no pressure to preselect the best candidates and governments with whiteboards may not give the electorate the facilities it deserves. This effect just about disappears with 7 per district, as every seat is a potential swinger one way or the other, and has to be taken seriously by government and opposition. With a high number, of course, the possibility that there will be representatives not just from minority groups but from really strange fringe groups increases.

Using PR by itself should increase the likelihood that a party that receives the majority vote will win a majority of seats, but of course it still does not guarantee it (see the Maltese figures quoted in the Mackerras and Maley article referred to in your issues paper). I believe that we ought to use mechanisms that try to guarantee it; a government that has received a majority of the seats with less than a majority of the "two-party-preferred" vote loses a certain share of its legitimacy. I submit that we should use both the South Australian and Maltese options mentioned in the issues paper. Perhaps the language of the South Australian section 83(1)

could be amended so as spell out a little more about the approach to be used; after the last comma the phrase "they will be elected" could be replaced by "they should, on the basis of the voting figures from the last election and reasonable assumptions about "swings" in voters' preferences, be expected to be elected". This may carry less of an implication that the Redistribution Commissioners have committed a dereliction of duty if the expected result is not achieved at the next election. In case that does not always achieve its aim, I suggest that the Maltese provision should be included as well, though I hope, with the other provision in place, it would not result in four extra members being declared elected as has happened twice in Malta.

Remaining Issues in Chapter 10

"Should the legislative initiative and referendum be introduced in Queensland?"

Yes. I think the case for this is a little less compelling than the case for Constitutional initiative and referendum, but if one only has provision for the latter, it tempts people to "constitutionalise" issues which really should only be the subject of ordinary legislation.

"If so, should the be an enabling provision in the Queensland Constitution?"

Well, yes, there would have to be, even under the present Constitution because the position of the Parliament as the source of legislation is entrenched in such a way that it probably excludes CIR. Under a fully-entrenched Constitution, the possibility of laws being made by initiative and referendum as well as by the legislature would of course have to be mentioned expressly.

"How should the process be regulated?"

As little as possible. The American States which recognise the initiative generally provide very few limits on the process, and although the occasional questionable law is enacted, a more-or-less civil society survives.

Issues in Chapter 11

Recognition of political parties - I do not believe that there is any need to directly recognise political parties in the Constitution. If there is a constitutional guarantee of the freedom of political speech, as I have suggested above (and indeed there already is under the Commonwealth Constitution - but it should be expressed in the State one as well), that should strike down any attempt by the legislature to unduly restrict political parties.

Legislative regulation of internal affairs of political parties - some degree of regulation may be necessary, but this would need much more discussion. Election of members of the Assembly using PR would ensure that each party put up a range of candidates in an electoral district, and may reduce the strength of any argument that primary elections should be imposed on parties. In cases of gross unfairness in respect to expulsion and such matters, I am not sure that the prospect of common law remedies is as remote as your Issues Paper suggests.

Issues in Chapter 12

"It is desirable to dispense with the office of Governor?"

No. There is certainly an argument that a Governor is unnecessary, especially in a State with a unicameral Parliament, but the decision is pretty much foreclosed for us by the Commonwealth Constitution which assumes that States will have Governors to Act as a pool of acting Governors-General. Section 110 says that "Governor" includes whoever is the "chief executive officer" (an early use of a now-common phrase), so if we abolished the office of Governor we could find the Premier in line to be the acting Governor-General, an office for which a political premier would be quite unsuitable. See also my suggestions, above, of ways in which the Governor could be given a "real job" as protector of the institutions of fairness in the State while remaining a non-executive Governor.

Next question therefore not necessary to answer.

"If the federal referendum is defeated, should any change(s) be made to the appointment of the Governor -
If the federal referendum is carried, how should the Governor be nominated, appointed or removed?"

I will answer these questions together because I believe there is a good case for democratising the process of appointment of the Governor even if we remain a State in a constitutional monarchy. At present the Queen formally appoints the Governor, but as a good constitutional monarch she is bound to take the Premier's advice. Legislation that said that the Premier's advice must follow the result of an election would merely be another small evolutionary development.

How should the Governor be selected and appointed? One of the advantages often claimed for a federation is that the States can "experiment" with different laws. There is no need for the States to all have the same system of appointment of Governor, and certainly no need for them to copy the system adopted for the Commonwealth. If we vote for a republic the federal President will be selected by the Parliament, despite the fact that a clear majority of republicans in Australia, and possibly a majority of all Australians, would prefer direct election. [I note here that I have some small preference for election by Parliament myself, but I actually think either method should be acceptable - see my chapter in The Case for Yes, edited by John Uhr.] The direct election model had more support in Queensland than in any other State - therefore this should be the State that demonstrates that it can work. I would suggest the vote be conducted by "approval voting" rather than any of the more combative methods; if a suitable person was nominated, we might demonstrate that someone could be supported by two-thirds or more of the population, as will be required of the voters (the members of Parliament) in the system proposed for the Commonwealth.

I have no strong preference for requirements as to nomination. There should be some mechanism so that the list of candidates is not too large - that could be nomination by a certain percentage of the population, or by some number of members of the Legislative Assembly or of local governments. If we remain part of a Constitutional monarchy, it would be proper for the formal appointment to be vested in the Queen. As part of a republic, of course the victor at the election would automatically be entitled to be sworn in as Governor.

I really expect that the issue of a Governor should arise even less often than the removal of judges, but I suppose there should be some mechanism just in case. If the Governor is to be directly elected, I favour making it as difficult as possible for the Premier or a mere majority of the Legislative Assembly to dismiss the Governor. After all, a captain of a football team cannot dismiss the referee! Perhaps a suitable provision would be that the Legislative Assembly may suspend the Governor, but that a new election of Governor must be held within as short a time as possible (10 weeks?) with the suspended Governor automatically eligible to renominate, and that if the Governor is re-elected s/he could not be suspended for the next eighteen months.

"Should reserve powers be codified?"

Not as such. What should be codified is the requirement that the real government must be run by Ministers who command a majority in the Assembly - see my answer to the Chapter Six issues above. Then, as I said there, the sting is taken entirely out of questions about the detailed exercise of the reserve powers.

Executive Council?

I am in two minds about this. On one hand, I think that it the Governor is to be a non-executive Governor it would make sense if we drop the constitutional pretence that s/he is an executive Governor. We could then transfer the name Executive Council to the present thing informally named "Cabinet" - it is a council that makes executive decisions after all, not a piece of furniture! On the other hand, I have heard accounts that the need for papers to go to the Council, where the Governor will see them, makes the public service take extra care. I really have no firm view.

Issues in Chapter 13 - Preamble

The State Constitution certainly should have some enacting words declaring it to have been enacted by the people of Queensland. Otherwise, I find it hard to get worked up about this issue. I find it a little incongruous that people want the preamble of the national Constitution to be a statement of national identity - that sort of thing belongs in a national Anthem ("I am, you are, we are Australian" says it perfectly - the nation should buy the rights) or the Great Australian Novel. The preamble of a Constitution should be a statement of why we have enacted this Constitution and included the particular things in it that we have chosen to include. I note the American one as an example.

Other Issues

Parliament should have a fixed term. Sir Owen Hood Phillips has said that the power of the Prime Minister to choose the time of an election is the gravest defect in the British Constitution; it is a defect in any Constitution. However, there should be provision for "special" general elections if it proves impossible to form a government, or if one can only be formed by a change in someone's allegiance that amounts to a fraud on the electors.

Parliament's powers and privileges should be limited to those necessary to protect it as a democratic and representative institution. In particular, it should not have the power to try people for contempt. Of course it needs protection from unjustified attacks, but the maxim nemo judex in re sua should apply to Parliament just as it does to everyone else. The Speaker should have the power to prosecute alleged contemnors in an ordinary court. The proposed section on the privileges of Parliament should be amended to reflect this.

Neither should Parliament have the power to legislate in its own interest. The Constitution should include a provision that the salary, allowances, conditions of audit of allowance claims, and pension entitlements of members are to be determined in adversarial proceedings in the Industrial Relations Commission, with representatives of the community acting in the role of employers. I expect that MPs may in fact be awarded salaries at least as high as their current level (though they might not become entitled to their pensions until the age of 55 or 60), but a cause for the present public cynicism about politicians would have been removed.

Introduction

If the people of Australia vote for a republic in November, a further stage in Constitutional debate can be confidently anticipated. First, with the elimination of the mystical argument that somehow the Queen and the English common law protect the rights of subjects, there will be more calls for the inclusion of Bills of Rights in our Constitutions, both Commonwealth and State. Secondly, these calls will be resisted by politicians (especially those in government) on the grounds that to have a binding Bill of Rights is inconsistent with the supremacy of parliament - and when reminded that in a republic the people, not the parliament, are supposed to be sovereign this argument will be recast along the lines that a Bill of Rights represents a fetter imposed by the people of one generation on the will of later generations.

In this paper I intend to explore the ways in which the sovereignty of the people can be given legal expression in a Constitution rather than existing merely as a political slogan, and in particular to defend the claim that in the right constitutional setting a Bill of Rights can be a way of manifesting popular sovereignty rather than suppressing it. It will be pointed out that the principles advocated here have been put into effect for the last century or two in the States of the United States of America and that their approach to constitution making and re-making is worthy of more study than it has received in Australia (and even, until recently, in America).

The Current State of Play in Australia - Sovereignty of the People or Supremacy of Parliament?

In Australia, as in other democracies, it is generally accepted that the people are (or is?) sovereign in a political sense. Both in the Commonwealth and the States, we have regular elections under a reasonably fair electoral system featuring universal franchise, so the members of the legislatures are ultimately responsible to the people, at least in theory. The existence of many "safe" seats for each major party, and strong party discipline in the legislatures, qualifies this somewhat - but governments are fairly frequently thrown out of office at general elections, which may be a measure of the exercise of effective political sovereignty by the people.

However, as to whether the people possess legal sovereignty there is room for dispute. The colonies planted in Australia between 1788 and 1836 were subject to legislative control by the British Parliament (referred to in this context as the "Imperial" Parliament), but the latter Parliament eventually allowed the colonies a large degree of self-government with bicameral parliaments on the British model. Soon after their establishment in the 1850s, these colonial Parliaments gave vent to the "democratic temper" [1] of Australians by passing electoral laws which gave the franchise to nearly all males - though residence requirements prevented itinerant workers from voting, and an owner of property in more than one electorate could vote in each electorate. In the 1890s the vote was extended to women in South Australia, and the other colonies and the new Commonwealth followed suit in the early 20^th century. Thus Australia implemented the political sovereignty of the people, giving "people" its full breadth of meaning, somewhat in advance of most of the rest of the world and distinctly in advance of the colonial power.

The laws made by the colonial parliaments were subject to judicial review if the parliaments exceeded their powers, but those who wanted to challenge them were informed by the Privy Council in 1885 that the colonial parliaments, when acting within the limits set by Imperial legislation, had "plenary powers of legislation as large, and of the same nature, as those of Parliament itself [2]" In the same year A V Dicey first published his famous Introduction to the Study of the Law of the Constitution, in which he made the claim that the basic principle of British constitutional law was that the Parliament could "make or unmake any laws whatsoever [3]". As the "Home" Parliament interfered less and less in colonial affairs with every passing decade, it became natural for State politicians and their advisers to apply the British doctrine to the description of their own parliaments, generating a mixed rhetoric in which references to the sovereignty of the Imperial Parliament and the sovereignty, or supremacy, of the local parliament are both heard.
 

[1]  Tom Collins (Joseph Furphy) summed up his novel Such is Life as 'temper, democratic; bias, offensively Australian' in a letter to his publishers; see ^^^

[2]  R v Burah (1879) 3 App Cas 889, a case on appeal from Bengal, which held that the colonial legislature had power to confer power on executive officers to make delegated legislation.  The quoted dictum was then referred to in support of a similar conclusion in a case on appeal from New South Wales, Powell v Apollo Candle Co (1885) 10 App Cas 282, 289.

[3] Law of Const    Note also his indication that he didn't like parl sov in Law and Opinion

 
Then in the 1890s a federal Constitution was drafted for Australia. The all-but-final draft was settled at a Convention to which four of the colonies elected the delegates, and was approved by referendums in all of the six States. An American might think this was enough to give the Constitution the force of law, but the federating entities were still British colonies, so the draft was sent to the British ("Imperial") Parliament with a prayer for its enactment. It was duly enacted, with one amendment to protect British investment interests, as section 9 of the Commonwealth of Australia Constitution Act (Imp). Section 128 of the Constitution itself provides that the Constitution could only be amended if an amendment proposed by parliament obtains the approval of the electors voting at a referendum (but says nothing about how the eight "covering clauses" of the British Act can be amended.

For some time after federation, it seems to have been taken for granted that the sovereign authority over Australia and all of its laws, and the source of authority for its constitutions, was the "Imperial" Parliament. However, Australia gradually evolved towards full independent nationhood, though many Australians were reluctant to claim that status. The British Parliament enacted the Statute of Westminster in 1931, disclaiming its right to legislate over the former colonies, now known as "Dominions", but included, at Australia's request, sections providing that the Statute would not apply to Australia - ie, the Commonwealth - until Australia adopted it, and that it did not apply to the States at all. However, when Western Australia, confident in the British Parliament's power to repeal the Commonwealth Constitution Act as far as it applied to Western Australia, petitioned it to do so, a Joint Select Committee of the Lords and Commons reported that while such legislation would be within Parliament's competence "in the strict legal sense", it would be outside its competence if constitutional conventions were to be observed, "as observed they must be". To enact the sought-for legislation, the Committee reported, would be "beyond the jurisdiction claimed by the Parliament of the United Kingdom [4]". Australia may not have adopted the Statute yet, but Britain was already applying its principles.

Australia adopted the Statute in 1942, and 35 years later, in the Seas and Submerged Lands case, the High Court declared that Australia was indeed an independent nation "in the eye of international law", though whether independence had been achieved at federation, in 1926, in 1931 or 1942 their Honours did not find necessary to say. Recently a majority of the Court has even declared that a citizen of the United Kingdom is a citizen of a foreign power, since none of the branches of government of the United Kingdom have any function in or over Australia [5]. The States remained in an anomalous position, theoretically subject to "paramount" Imperial law and with Governors appointed by the Queen on the advice of the United Kingdom government, but finally in 1986 both the United Kingdom and Commonwealth Parliaments enacted an Australia Act 1986 which extended the principles of the Statute of Westminster to the States.

Australia, then, is certainly independent, a sovereign nation - but who, or what body, is the sovereign legal authority? Certainly neither the Commonwealth Parliament nor State Parliaments are sovereign, despite judicial remarks to the effect that they are "distinct and separate sovereign bodies, with sovereign powers limited only by the ambit of their authority under the Constitution [6]". This is, with respect to all the Justices who have said things like it, a very attenuated version of the concept of a "sovereign". Both Commonwealth and State Parliaments have their authority very much limited by the Constitution, as they find frequently when their purported laws are declared invalid. The question is who has the ultimate power? Whose authority is regarded as the ultimate authority for the validity of specific valid legislation or executive action?
 

[4] Cited in Christopher W Besant, 'Two Nations, Two Destinies; A Reflection on the Significance of the Western Australian Secession Movement to Australia, Canada and the British Empire' (1990) 20 UWALR 2209 at 291 (my emphasis).

[5]  Sue v Hill [1999]

[6]  Mewett v Commonwealth, citing Griffith CJ in The Municipal Council of Sydney v The Commonwealth

  
For a long time after Australia had, according to the retrospective recognition in the Seas and Submerged Lands case, become independent, the High Court would still decide matters involving British statutes as if the United Kingdom Parliament still had the power to legislate for Australia, if only it wanted to and expressed its intention clearly enough. For example, in Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 Deane J explained that the judgments were reasoned:

If the people are now sovereign, then they (we!) are a the sovereign in a very qualified way. First, of course, constitutional amendment is not approved by a mere majority of the electors, but the "double majority" requirement of section 128: a majority of electors voting overall and a majority of electors voting in a majority of the States. But, after all, in a federation each person is necessarily part of the people as a whole and the people of the State, Land, or Canton, and sovereignty is generally divided between the two levels of the people [10]. More significantly, we cannot initiate Constitutional amendments ourselves. Except in the rare case of bipartisan agreement, only the party in power in government can initiate an amendment - though section 128 does include a provision for a referendum if one House has passed an Alteration Bill twice, it is understood that this is an area where the Governor-General would take the advice of the Ministry, and therefore only Bills approved by the government will be put to a referendum. Therefore, in practice, the Senate has no independent power to initiate amendment. On the face of the Constitution, Parliament proposes and we the electors dispose, but in reality only the government proposes and we dispose. If we are the sovereign, we are merely a reactive, rather than a "proactive" sovereign. Perhaps the more logical description of the legal sovereign in Australia is that it is a composite body, the Parliament (in which the House of Representatives has a special weighting) and the electors (in which the electors of the States have special weighting).
 

[7]  Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and  Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 per Mason CJ 138, Deane and Toohey JJ at 70.  [The two cases dealt with the same issues so Mason CJ gave his reasons in the Television case and applied them in the News case, and Deane and Toohey JJ vice versa.]

[8]  McGinty v Western Australia (1996) 186 CLR 140 per Toohey J at 199, fn 278, McHugh J at 230 and Gummow J

[9]  Studies in History and Jurisprudence, 1901,

[10] Cite amendment provisions of 3 consts

As regards the States - allowing that we can talk meaningfully of the "sovereign" authority within an entity that is not truly sovereign - the picture is even more disputable. The States do not have "Constitutions", if a Constitution is a supreme law binding on the Parliament. Each State has a Constitution Act which an Act of the Parliament of the State, and in general amendable like any other Act. [The High Court did develop a doctrine in the early years of this century that a Constitution could only be amended by an express amendment, but the Privy Council overruled this in McCawley v R [1920] AC 691, holding that in general a State's Constitution Act can be impliedly amended simply by passage of an inconsistent Act.] To this extent it seems that each State Parliament is, subject of course to all of the prohibitions in the Commonwealth Constitution, "sovereign" within its State, like the mother of parliaments within the United Kingdom.

However, back in colonial days the colonial parliaments were given a degree of power to bind their successors by the Colonial Laws Validity Act 1865. This enabled colonial legislatures to prescribe special enactment procedures for future laws affecting the constitution, powers or procedure of the legislature, and this provision was continued (applying now to State parliaments) by section 6 of the Australia Acts 1986. All States have taken advantage of this power by protecting some sections of their Constitution Acts from hasty amendment by requiring either a referendum or absolute majorities in the Houses of Parliament for acts intending to amend or repeal the respective sections. Where the special procedure is passage by a special majority it may have little effect on the sovereignty of parliament, but where it involves a referendum then it seems to be introducing the notion of the sovereignty of the people, at least in the reactive sense noted above, into State law. In Attorney-General (NSW) v Trethowan (1931) the High Court held that a referendum requirement was effective, and that an Act purporting to amend the New South Wales constitution in defiance of such a provision would be invalid. The Court reached that conclusion simply by interpreting the provisions of the Colonial Laws Validity Act 1865, enacted by the Parliament still regarded in 1931 as sovereign over Australia. However, in Westlakes Ltd v South Australia (1980) 25 SASR 389 King CJ discussed a range of possible enactment procedures: special majorities in parliament, a requirement for approval by some body outside Parliament, or referral to the electors at a referendum. Though he suggested problems with the first two, he suggested that the latter type would clearly be binding because "it is confined to obtaining the direct approval of the people whom the ‘representative legislature' represents". Here there is a clear hint of judicial approval of moves by State parliaments to reflect the sovereignty of the people more directly in State Constitutions.

This topic is far too complex to deal with more fully here [11], but suffice it to say that the case law show judges being influenced by competing notions of: the sovereignty of the United Kingdom Parliament, the claims to "sovereignty" or supremacy of the State parliaments, the superior status in logic of a constitution which both creates a legislature and limits its powers, and the sovereignty of the people. So far, it must be said, they have not resolved these claims in an entirely consistent way. When it comes to basic principles, Australia is, so far, the Constitutionally Confused Continent.
 

[11]   For a comprehensive treatment see Gerard Carney, 'An Overview of Manner and Form in Australia' (1989) 5 QUTLJ 69

The Next Stage: A Home-grown Preamble, Perhaps a Republic

Now of course we are waiting to see what happens in the referendum on November 6^th. We will be asked whether we approve of two proposed laws, entitled:

• A proposed law to alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament; and
• A proposed law to alter the Constitution to insert a preamble.

Whether the republic will be adopted is course still very much a matter for speculation. If it is, the very fact of Australia's becoming a republic (a res publica, a public thing) will provide a further argument in favour of recognising the sovereignty of the people as a principle (the principle) of the Constitution. However, none of the detailed alterations to the sections of the Constitution to be made by the main Establishment of Republic Bill will have any bearing on the question of sovereignty.

The Preamble Bill - which has bipartisan support and therefore will probably be approved - will, however, bear more directly on the issue. The proposed new preamble will include the words "We the Australian people commit ourselves to this Constitution". In fact, at the Constitutional Convention in 1998 a sub-group of the working group on the preamble recommended the inclusion of an enactment clause along the lines of "We, the people of Australia, do hereby enact and give to ourselves this Constitution", but the Resolutions Group then redrafted it, so the Communique of the Convention simply recommended that we "commit ourselves" to the Constitution. Even this watered-down version can still be seen as a statement of re-enactment and ownership of the Constitution by the Australian people, thus providing a further reinforcing argument in favour of popular sovereignty. It can probably be anticipated that at some time not too far from now a majority of the High Court will agree that the Commonwealth Constitution is based on the sovereignty of the people. However, the points made above will still hold - that since the people cannot initiate change we are only a reactive sovereign, and the more analytical description would have to refer to the members of Parliament (weighted towards the House of Representatives) and the people (counted separately as people of the States and again together as people of the Commonwealth).

As to the States, it remains to be seen what developments in State constitutional law will follow from the establishment of a republic. If one assumes that the States will continue to have Constitution Acts which are generally amendable by their own parliaments, with special amendment procedures only relating to a few provisions, the confusion of principles noted above may continue - though an increased emphasis on the priority of the sovereignty of the people over the other principles would be consistent with the developments in federal constitutional law already noted. However, what I want to address in the rest of the paper is the possibility that the States, or some of them, may opt for a more radically republican approach - to adopt new, real, Constitutions - not mere Constitution Acts - which have the status of supreme law, and which give some real legal effect to the sovereignty of the people. What would such a Constitution contain, and can we find precedents for one anywhere else in the world?

Future Stages: Ways to Give the Sovereignty of the People Legal Meaning

The implementation of the sovereignty of the people can be seen as necessary if a state is to regard itself as fully democratic - after all, democratia means rule by the people, and representative democracy, to adapt Lincoln's aphorism, means rule by the people through their representatives, not rule of the people by their representatives. What would it mean to have a system of government in which the people could truly be said to be the legal sovereign?

First, there are some basic requirements needed even to guarantee that the people will continue to hold the political sovereignty. These are:

• that all adult citizens should have the right to vote and to stand for election to office, subject only to reasonable and minimal disqualifications;
• the freedom to discuss and debate political issues and public affairs;
• a maximum term for the Parliament
• that the electoral system ought to be fair and that the basic principles of the methods of determining electoral boundaries and counting votes ought to be stated in the Constitution so that they cannot be changed without the approval of the majority of the electors.

• to have a set of fundamental laws, controlling the exercise of power, that are controlled by ("owned" by) the people, in the sense that change in them can only occur if approved by the people and can be initiated by the people.

The requirement that change can only be approved by the people is easy to put into practice - one has a constitution that can only be changed if the majority of the people approve at a referendum (and one tries to ensure that only the things that are worthy of "entrenchment" by a referendum requirement are included in the constitution). But it is not enough, especially in a state (like all of the Australian States and the Commonwealth) where the holders of legislative and executive power overlap and control each other. If there is a feeling in the community that stricter controls ought to be imposed on legislature or executive power the initiative for constitutional amendment is hardly likely to come from the holders of those powers. It should be possible for the people to initiate change themselves.
 

[12] Ie, bigger than a smallish Greek polis or an early New England town, where everyone can attend civic meetings.

Citizens' Initiative

The requirement that the people should be able to initiate change can be satisfied in just two ways that I am aware of. The obvious one is citizens' initiative and referendum (CIR), or simply "the initiative" - a system whereby, if some specified proportion of the population request it, a proposal must then by presented to the rest of the citizenry to vote on, and it becomes law if approved by the majority of the people without the need for normal legislation. Many objections are raised to it in Australia, where we have no experience of it, especially by politicians who have learned to respect the supremacy of parliament. One is that it may be all very well in places like the United States with a strict constitutional separation of powers, but it is incompatible with "responsible government", in which Ministers must be members of the parliament and must have the confidence of the majority of members of the ‘lower" house. However, it is even more necessary under such a regime than otherwise, because under "responsible" government it is all too easy for the majority in the lower house to become captives of the executive - and in this State there is only a "lower" house. Both the Parliamentarians and the senior executives who advise them may be generally benign, but there is no guarantee that they will not occasionally forget the interests and traditional rights of the people who vote for them, and sacrifice them to party interests or executive convenience. In Queensland, several times in the 1980s supposedly "minor" amendments to the criminal laws were presented to the Parliament, and only quick scrutiny by the Law Society and Bar Association revealed that significant extra powers were being given to the police. In the 1990s we have seen Freedom of Information legislation amended so that the executive can keep any document secret by taking it to a Cabinet meeting. Each major party in turn has promised to remove this provision when in opposition, and has forgotten about it in government! Even the threat of a CIR proposal on that topic would probably remind the government of its high principles.

CIR is opposed by some liberals (using the word as it is used in America, to refer to what we would call a "small-l" liberal here [13]) on the grounds that the majority might use it to oppress minorities [14]. This fear seems to have been heightened since the "success" of the One Nation Party - a party that, while avoiding overt racism, attracted votes by complaining about the granting of rights to, and the spending of money on, indigenous people and migrants - in the last Queensland State elections. The fact that 23% of Queenslanders voted for the ONP is supposed to show that Queenslanders could not be trusted to respect other peoples' rights. The fact that 77% of the electors did not vote for the ONP is ignored - the ONP is a scary phenomenon for liberals, and when one is scared one notices only the scary side of statistics and not the comforting side. As to another aspect of liberalism, a concern with sexual and personal freedom, opinion polls show that on many issues the majority of ordinary people are much more liberal than our so-called representatives. Majorities of the population consistently show support for the repeal of repressive prostitution and abortion laws, yet our parliaments are generally slow to act. A clear majority supported the Northern Territory parliament's euthanasia legislation, yet a church-ridden Commonwealth Parliament used its power over the Territories to over-ride the law [15].
 

[13] A large-L liberal is a member of the Liberal party - a conservative and big-business party with close links to the US Republican Party.  It does contain some small-l liberals, and so (at least when in opposition) does the Australian Labor Party.

[14] Chris Puplick, ......

[15]  The popular cynical remark about politicians is 'They're all in it for what they can get out of it'.  Some, indeed, may succumb to the temptation of greed, but the euthanasia legislation shows that a more justified cynical view might be that many of them have gone into politics so that they can order the rest of us around.

  
An idea related to the above objection is that CIR might be a good idea in principle, but it would not be safe unless we first had a Bill of Rights (presumably one that is safe from amendment by CIR, as it would be if it was in the Commonwealth Constitution). Again this presupposes that the electorate is less liberal than our members of parliament. If one has confidence in the liberality of the electorate, one can reverse the argument - CIR would be a good way of bringing in a Bill of Rights even if the members of Parliament were opposed. Indeed, if the Queensland Parliament had enacted the recent CIR Bill, I can confidently assert that one of the first uses of the initiative mechanism would have been to propose the enactment of at least some of the basic parts of a Bill of Rights. [I can assert that confidently because I would have initiated it myself if nobody else had.]

A further objection is that legislation is too complex to be fully debated by the whole population. There is one simple answer to that - that if anyone proposed complex legislation comprehensible only by specialists, that in itself would be ammunition for the "No" case and it would probably not get majority support at a referendum. Even if there is some truth in the objection, it is less applicable to constitutional amendment than to ordinary laws. It is much easier for ordinary people both to draft and to debate a proposal such as "the salaries and allowances of members shall be determined by the Industrial Commission, and associations of taxpayers and voters shall have a right to appear and make submissions in a role analogous to that of employers in ordinary industrial disputes" than to draft and debate an entire Workplace Health and Safety Act, for example. A State in which the people are sovereign ought to have CIR at least for Constitutional alteration. [I concede that experience in places such as Switzerland shows that if CIR is only allowed for Constitutional alteration then matters which are more appropriate for ordinary legislation are "dressed up" as constitutional issues - so that the Swiss legislators eventually gave in and provided for CIR for ordinary legislation as well.]

Constitutional Conventions

The other, less direct way, to involve the people in initiating change is something that has been used in Australia at the federal level but never at the State level - the specially-elected Constitutional Convention. This indeed is a less direct way of involving the people in initiating change than CIR - and in the nature of things many of the people who stand for election to a convention and get elected will be the same politicians who make up the normal legislature [16] - but candidates will have campaigned on the basis of fundamental constitutional issues - being for or against certain proposals for change - and they will have been selected on those issues rather than on the usual day-to-day political issues.

The idea that constitutional changes proposed by a Convention specially elected for that purpose have more legitimacy than proposals made by the ordinary legislature can be traced back a long way in our Constitutional history. In 1656 Sir Henry Vane suggested that a fundamental constitution could be made by a "General Council, or Convention, of faithful, honest and discerning men, chosen for that purpose [17]". This Council or Convention would "not properly- exercise the Legislative Power", but a different, constitutive, power. It seems no coincidence that when the Parliament met in irregular circumstances after the expulsion of James II, it styled itself the Convention Parliament. A Convention had become the accepted term for a body charged with making or changing fundamental law - and, as the use of Conventions in connection with the federal constitutions of both the United States and Australia shows, it has become the accepted way to draft the Constitution of a democratic state. At least where CIR is not used, then some form of regular review by Constitutional Convention, specially elected by the people for that purpose, is necessary if the Constitution is to remain "owned" by the people.

Possible Content of Such a Constitution

The references above to controlling the exercise of power, and placing limits on the power of our representatives, might seem as if this an argument for minimal government, along the lines of "they govern best who govern least [18]". But this is not so - one can believe in an interventionist, redistributive government without accepting that it must have unlimited and unreviewable power. The argument presented here is a liberal argument - in the sense in which the word "liberal" is used (perhaps redundantly) in the phrase "liberal democracy", but presupposes no particular choice by the people about the economic system they will live under. The view presented would be compatible with life in a state which for the moment followed neo-classical liberal doctrines, as long as everyone had the right to campaign at fair elections for more state intervention in the economy without being prosecuted for treason and being labelled a "stooge of Moscow". It would also be compatible with life in a communist state, as long as everyone retained the right to campaign at fair elections for the return of greater rights to the free ownership of property (ie, a communist state of a kind never yet seen). Though the notion of rights against the state originated in bourgeois societies and is seen by many of the left as a device to protect private property, the concepts of free speech and political participation are analytically separate from the right to hold private property.

The core of rights that must be expressed if a Constitution is to reflect the sovereignty of the people is simply that every person retains the freedom to have and express political beliefs of any kind (short of beliefs which would deny other people the same right) and to vote for representatives who will exercise the day-to-day legislative power, and that the majority of people have the right to determine the fundamental law for their state (again, short of including anything which would deny any other person's right to participate). The minimum Constitutional content necessary to guarantee that core has already been listed.
 

[16] Of the 40 elected delegates to the Convention of 1897-8, only two (Dr John Quick and Mr J T Walker) were not current or former members of a colonial parliament.  Quick was a leading member of the Australian Natives Association and known (rightly or wrongly) as the originator of the 'Corowa Plan' that had led to the election of delegates (Helen Irving, To Constitute a Nation, CUP, 1997, pp 135-9) and Walker 'had written and lectured a great deal on the question of federal finance'  (J A la Nauze, The Making of the Australian Constitution, MUP, 1972, p 101).

[17]   A Healing Question, 1656, cited in Morgan, op cit, p 89.

[18]  Tom Paine, Rights of Man Vol 1??

  
Beyond that minimum, it should be entirely up to the people to decide what further controls are placed on their government by a Constitution. It may well be that they decide that for the protection of their own liberties a separation of powers, or at least a separation of judicial power from other governmental powers, and some express statement of the rule of law, are necessary. One might expect many of the rights and freedoms that our history records people having had to struggle for, against aristocratic, autocratic or exclusivist governments, to be protected by a Bill of Rights. These might include prohibitions of racial or sexual discrimination, at least by government agencies and perhaps by other citizens. One would probably expect some guarantee of the right to non-disturbance in the use of private property - the prospect of the people voting for a communist but democratic state as hypothesised above is, after all, fairly remote. The broadening of "the freedom to discuss and debate political issues and public affairs" to a full guarantee of "freedom of speech and of the press" would no doubt be on the agenda. If the more limited version was felt to be sufficient, then the degree of control of things like pornography would be left for the legislature to decide - and the expression of opinions as to how they should decide would continue to be protected by the more specific guarantee.

One would also expect some concern for the protection of the traditional rights of those suspected or accused of crime (though whether breach of a person's rights should lead to the automatic exclusion of all evidence might be more debatable). However, in modern society, where ordinary people can feel oppressed or have their entitlements ignored by many members of the executive other than the police, one might expect calls for the protection of some of the recently-created administrative-law rights, such as freedom of information and judicial review of executive decisions, as much as for the traditional civil liberties. In the area of personal morality, some people might propose a constitutional guarantee of rights to things like abortion or euthanasia, or a guarantee of the right to life from the moment of conception to the moment of natural death. The campaign would no doubt be very emotional, but if one or other proposal were accepted, at least the politicians could feel that the pressure was off them. And if - as is quite likely - neither the right to abortion or euthanasia nor a right to every moment of life was thought suitable for constitutionalisation by the people, the politicians could take it as an instruction to continue with the same old compromises and trade-offs as before.

It is also possible, under this model, that the people (the majority of them) might decide to give directives to the state, to enforce some interventionist activity and guarantee some welfare rights. I have doubts about the practical enforceability of all of the rights listed in the International Covenant on Economic, Social and Cultural Rights (what remedy does an unemployed person expect a court to order for a breach of the right to work, for example?) but as we shall see in the next section the people can impose some obligations on governments that a court can enforce without stepping too far out of its traditional role.

If I am prepared to leave so much to a vote of the majority, some might ask, what of the dread prospect that a majority of the people might want deprive a minority of its rights, or interfere with the "minimum requirements for a state in which the people are truly sovereign" listed above. Is there not a case for making the minimum requirements non-repealable, or for requiring more than a mere majority vote for their amendment or repeal? Well, yes, there is a case for it - but there are two arguments against it:

(1) In a society with a political culture in which the values of free speech and political debate are deeply embedded, proposals to reduce the minimum requirements are hardly likely to receive the support of the majority of the people. There is, after all, at least a thin theory of natural rights lying behind the emphasis on majority rule. The oft-heard dictum that democracy means not only majority rule but a concern for minority rights as well is not one principle contradicting another - both parts of the principle are derived from the same idea, that everyone counts equally. In a healthy democracy, any move to take away the fundamental rights of political participation from some group can be countered by the argument "If them now, why not you next?" If the democracy is truly healthy, that argument will sway most people's votes.
(2) If the majority of a society is not really committed to democracy, I doubt that entrenchment of fundamental democratic rules by requiring a super-majority for their repeal will save them. In such a society, the issue will be resolved by force. Either the majority will stage a revolution and impose their own grundnorm, or a group that still believes in democracy and has armed force behind it will stage the almost-ultimate paradox, the coup to save democracy, as the Army did in Algeria in 199x. I may be complacent, but I do not think these issues are likely to arise in Australia.

I explained above that this description of a state that properly embodies the sovereignty of the people would first be presented as if it was an exercise in a priori reasoning - but I also promised to reveal that these ideas are not original, and have been put into practice in other places. Well, here is the revelation - most of the above paragraphs (with perhaps the odd, small, speculative addition) have been a description of the constitutional practices observed in the States of the United States of America. The federal Constitution of the United States compromises the sovereignty of the people at least as much as our federal constitution does. The initiation of amendments is left to the Congress, unless two-thirds of the State legislatures call for a Convention - and that has never happened. The ratification of amendments is done, not directly by the people, but by the State legislatures, and since three quarters of them have to ratify, the representatives of a very small fraction of the population can veto an amendment favoured by a substantial majority. But, without much attention from the academic world [19], the States have been putting the sovereignty of the people into practical effect ever since 1780. A brief survey of some of their provisions [20] follows.
 

[19] Cite papers on reactivation and rediscovery of State Constitutional law.

[20] The standard paper source is Constitutions of the United States : National and State, 2nd ed, Oceana Publications, 1982.  The modern quick way to find them is one the World Wide Web; 47 are listed at http://dir.yahoo.com/Government/Law/Constitutional/Constitutions/United_States/ U_S__State_Constitutions/ (I have not yet done a head count to identify the missing three.)   The survey in the following paragraphs is, so far, based on just 11 of the States.  I will incorporate the results of a full survey of all 50 States into the final version of this paper.)

 
Superior-law Status
All of the States have written Constitutions, which have the status of superior law. Judicial review of legislation for compliance with the State Constitution is routinely practiced. In all (all but one?) cases, however Constitutional amendments can be proposed, they have no effect unless ratified by a vote of the people. This usually requires a simple majority for successful ratification, though in some States, if the vote is taken on a constitutional amendment at the same time as a general election, the requirement is three-fifths of those voting on the question or a majority of those voting at the election, presumably inserted in case only a small part of the population bothers to vote on the Constitutional question.

Power to Initiate Proposals for Constitutional Amendment
In each State an amendment - or, in many cases, a new Constitution - can be proposed by vote of both Houses of the legislature. It is usual to require a 2/3 or 3/5 majority in each House, though in some [22] a majority is enough.

Many States also have provisions for the holding of Constitutional Conventions. Some States provide that the legislature may simply enact a law so providing (some require a super-majority), which others provide that the legislature may put the question "Shall there be a Constitutional Convention?" to the ballot at the next general election A number provide that if there has been no Convention, or ballot question about a Convention, in the past so-many years [23], the executive must place the question on the ballot at the next general election. In Florida a question as to the holding of a convention to revise the entire Constitution can be proposed by popular initiative (requiring signatures from 15% of the voters). Where the people have approved the calling of a convention, most of the constitutions then require the legislature to enact enabling legislation, and all require the amendments recommended by the convention to be put to the vote, usually at the next general election but in some cases sooner.

Further, in some States constitutional amendments can be proposed by "the initiative". The number of signatures required on a petition is usually relatively high compared with that required for the use of the initiative for lesser legislation [24].

Overall, the States vary widely in their approach to Constitutional amendment or redrafting. Some reserve power to the legislature by providing that only the legislature can propose amendments [25], or, where conventions are accepted as well, that only the legislature can call one or propose one, subject to ratification by popular vote [26]. But others take pains to ensure that the people are, or can be, involved, by providing for the proposal of specific amendments of the calling of a convention by the initiative, or by provision that if the Constitution has been "frozen" for some period the people must at least be asked if they require the holding of a convention. Some provide all three - legislative proposal, convention, and popular initiative. Florida has the above three and in addition provides for a Revision Commission, with representatives of the legislature, executive and judiciary, to be appointed every 20 years.
 

[21]   Eg, Illinois, art XIV s 2

[22]   Eg, Arizona, Arkansas

[23]   Eg, Alaska (10yrs), Hawaii (9 yrs), Illinois (20yrs)

[24]   Eg, Arizona 15% rather than 8%, California 8% rather than 5%, Florida 8%.

[25]   Eg, Arkansas

[26]   Eg, Colorado, Delaware, Georgia, Idaho

Methods of Legislation
In addition to legislation enacted by the legislature, 24 of the States provide for legislation by the initiative. A full review of these provisions is beyond the scope of this paper [27].

Bills of Rights
As well as being bound, via the 14^th Amendment, by much of the Bill of Rights in the United States Constitution, almost [28] every State has some provisions of the nature of a Bill, or Declaration, of Rights, though they vary in their comprehensiveness. In some cases their provisions are drafted in broader terms than the corresponding provisions of the United States Bill of Rights (eg, "everyone has the right to ..." rather than "Congress shall make no law- abridging-"), so they have been held to protect rights against infringement by private bodies as well as by the State, providing, for example, a guarantee of free speech in effectively-public places such as shopping malls [29].

Affirmative Duties to Legislate on Certain Topics
In the sections already referred to relating to Constitutional Conventions, it is common to find only the details specified in the Constitutional text, accompanied by provisions mandating that "the legislature shall-" enact laws providing for further details including appropriation. That in itself may be surprising enough for an Australian lawyer, who will immediately start to ponder on the reluctance of courts to give mandatory injunctions to an individual, let alone to a Parliament. But many State Constitutions go further. In what many of us would regard as the least-socialist democracy in the world, nearly every State Constitution has provisions mandating State-funded education, in some cases mentioning special provision for the deaf, dumb and blind [30], and in some cases extending to university education. Many of these clauses include words such as "uniform", "thorough" or "efficient", and many of the Constitutions also contain a general "equality under the law" clause as well. Hence in 1971 the Supreme Court of California felt able to hold that a distribution of money to school districts proportional to the money raised in the district by property taxes was unconstitutional, and in the following 20 years challenges followed to the school funding system in about half the States, and were successful in half of them [31]. Here is the general point about affirmative duties promised earlier - a court may not be willing to tell a legislature "you must make a law in the following terms", but courts are experienced in deciding whether things are equal or unequal, proportional or disproportional, so when a Constitution mandates equality it is well within the traditional role of a court to say "You haven't done it right; if you want to do it at all, go back and do it again." No State has yet challenged its Supreme Court by simply abandoning all expenditure on State education systems - then the Courts would be faced with a hard choice, whether to invent a remedy or admit that a Constitutional mandate was unenforceable.
 

[27]  For an overview, see Geoffrey de Q. Walker, The people's law : initiative and referendum, University of Queensland Press, 1988.

[28]   Kansas appears to be an exception - but it does have sections guaranteeing the right to be a member or non-member of a union (Art 15, s 12) and the rights of victims of crime (Art 15, s 15), and requiring the legislature to make laws protecting the rights of married women (Art 15, s 6).

[29]  Cite cases and articles - and cf Foley v Padley (1984) 154 CLR 349

[30]   Arizona

[31]  See John D Leshy, 'The State of Constitutional Law in the States of the United States: Are There any Lessons for Australia?' (1990) 20 UWALR 373

  Conclusion
This brief survey has shown that most of the ideas suggested above as ways to manifest the sovereignty of the people have been put into effect in the States of the United States. Academics have not discussed the content of the State Constitutions and the case law, and theorised about them, nearly as much as they have about the federal Constitutions of the United States and Australia, but the States have simply been going about their business, putting into effect some of the ideas circulated by English radicals such as the levellers, Sir Henry Vane, and James Harrington in his Oceana. As we head into a new millennium, perhaps in the form of a republic, I suggest that we should start to pay more attention to these ideas and the American examples of their implementation, instead of the parliamentary-supremacist ideas of Blackstone and Sir A V Dicey.

Consequences of the Above Approach - a Bill of Rights as a Manifestation of the Sovereignty of the People, Not a Fetter Upon it

Having seen the way that American states run their business, we can address one of the objections to the notion of a Bill of Rights often heard in England and Australia. This is the "fossilisation" argument. Bentham put the objection with his usual rhetorical brilliance in Anarchical Fallacies, his critique of the French Declaration of the Rights of Man and Citizen; the anxiety to establish fundamental laws is

Bentham and the Privy Council are absolutely right - as long as we are considering something like a declaration of "imprescriptible" rights - a list of fundamental rights which are to be binding for all time. The objection would also apply to a provision that a law is not to be repealed except by a two-thirds, or three-quarters majority, or a unanimous vote, of Parliament. Such provisions indeed reflect a tremendous presumption on the part of those who enact them - or a tremendous determination to be unfair to the Opposition who might (horror!) win government at the next election! It seems to me that most of the arguments against Bills of Rights stem from an implied assumption that they will be entrenched by some provision which makes them impossible to repeal - a kind of folk memory that, once upon a long time ago in a foreign land, the word "imprescriptible" was used.

But these criticisms fade if a Bill of Rights is included in a Constitution, and is subject to amendment, under the kind of regime suggested in this paper - where limits on government power are not seen as perpetual, but are always subject to review and reconsideration, and where the only form of entrenchment used is the requirement for a simple majority at a referendum (or a section-128 type of majority in a federation). That sort of Bill of Rights is not saying to future generations that no laws can ever be made on certain topics, but is saying to present and future Parliaments "There are some kinds of laws you cannot make without asking us, the people, for authority". Future Parliaments retain their right to propose changes to the Constitution, and future generations of the "people" retain their right to approve or disapprove the proposals.

One rejoinder to this might be that Australian experience shows that it is so hard to get the electors to approve a Constitutional alteration that anything entrenched by a referendum requirement might as well be made unrepealable. Somehow this observation is then combined with the "fossilisation" argument to show that a Bill of Rights is undesirable. I find this argument very odd. If a government puts a proposal to the people and the majority votes "no", so be it. If what the proposers wanted to change was something approved by the people of an earlier generation, then the people of this generation are not being "chained down by the dead"; they have re-affirmed the judgment of the earlier generation. It is true that recent experience in referenda concerning the Commonwealth Constitution has suggested that the people can be frightened into voting "no" by a campaign relying on scare tactics and misrepresentation, but - again - so be it. If those campaigning for change cannot put their argument persuasively, then there will be no change.

Another Device for Maintaining the Sovereignty of the People - a Heggaton Clause
The other main objection to a Bill of Rights - and probably the most cogent one - is that a Bill of Rights transfers the power which rightly belongs to the people or their Parliament to the judiciary, that it politicises the judiciary and gives them legislative power. To the extent that this is based on the notion that the judiciary does not legislate in ordinary common-law cases, it is at least a trifle romanticised. The judiciary has always legislated, in a quiet, "interstitial" way (show me anyone who says that the decision in Donoghue v Stevenson [1932] AC 562 was not a legislative act and I'll show you someone who hasn't read the previous cases on negligence!) But it is true that the judiciary should not have the same broad scope for decisions that the legislature has.

To some extent this problem can perhaps be minimised by careful drafting of rights provisions, but it must be admitted that it remains quite possible, if we adopt a Bill of Rights, that in some future generation a court will invalidate a statute that would not have been seen as objectionable by a majority in the generation which adopted the provision or, more seriously, by a majority of the people in the future generation. Doesn't this show that entrenching a Bill would hand supreme power to the judiciary? The judges will be using their interpretation of one generation's intent to hobble the elected representatives of the later generation.

Again, however, this problem is only unavoidable if the rights in the Bill are said to be permanently binding, "imprescriptible". Even in respect of the United States Bill of Rights some of the attacks on the Supreme Court for its interpretation have a touch of humbug about them. The judges invalidate a law on civil libertarian grounds, or a less libertarian Court validates a law. The cry of "rule by judiciary" goes up. The response of the political parties is to try to stack the Supreme Court next time they are in power. The assumption seems to be that the Bill of Rights is something given to them by James Madison and friends, which they are powerless to amend openly, so they can only do it by re-interpretation. Yet even it is amendable! It is open to any of the politicians who are offended by Supreme Court decisions to propose amendments to the Bill of Rights. They don't even have to put the proposal to the people - only their fellow politicians, though a complicated majority is required. But they don't - perhaps because they have a feeling that "people" are happy enough with the Bill as it is, and do not want it amended. It is easier to whinge about the Supreme Court than to try to re-state the Bill of Rights. If this generation of Americans is being ruled from Madison's grave, it is rule by persuasion, not by coercion - and that sort of rule is another fundamental of democracy, after all.

I can, however, see one reply to my argument above which has some force. To stick with the American example, if the Supreme Court has just made a ruling based on the "unreasonable search and seizure" provision, politicians and indeed the people may want to override that without wholly abolishing the protection of the Fourth Amendment. It may be difficult to formulate an amendment which will permit the desired law without creating a worry that other, much less desirable, laws might also be authorised. So the politicians and the people do nothing - except to continue to grumble about the Supreme Court. Any amendment may seem like too much of a "blank cheque". But there is an easy cure for this problem too - another use of the referendum. A Constitution could contain a provision that any law that had been specifically approved by referendum would be valid notwithstanding that it was in breach of some general provision of a Bill of Rights. This sort of provision was actually suggested in the press in Adelaide by a Mr Heggaton in the 1890s debate about the proposed Commonwealth Constitution. Sir Frederick Holder, a South Australian delegate, took the idea to the Melbourne session of the Convention and proposed an amendment to implement it - but was talked into withdrawing the amendment [32]. So I refer to it in honour of its originator as a Heggaton clause.
 

[32] See James Thompson, 'Constitutional Authority for Judicial Review: a Contribution form the Framers of the Australian Constitution', in The Convention Debates 1891-1898, Legal Books, 1986, Vol VI (Commentaries, etc), p 173 at pp 183-5.

The effect of such a clause would reinforce the sovereignty of the people. A Bill of Rights would not be saying to future generations that no laws could ever be made on certain topics, but would be saying to present and future Parliaments "There are some kinds of laws you cannot make without asking us, the people, for general authority or for specific approval of the law". Future Parliaments would retain their right to propose laws or changes to the Constitution, and future generations of the "people" would retain their right to approve or disapprove the proposals. Entrenched rights would be compromised, not for the specious value of the sovereignty of Parliament, but for the sovereignty of the people.

I suppose that such an original suggestion could raise the spectre of endless referenda, as in The Rise and Rise of Michael Rimmer. But I hardly imagine that once we have a Bill of Rights the government is going to want to fiddle at the boundaries of it every day. On the occasions when the government felt that some rights-limiting measure was justified, however, the Heggaton clause would give it an opportunity to try to "sell" that justification to the people - and if the people voted "no" the government would have no cause to complain about rule by the judiciary, or rule by a past generation. They would have received a reminder that election by the people did not entitle them to do anything they felt like to the people's rights. By using this and other techniques in redrafting our Constitutions in Australia, we can ensure that the rights truly seen as fundamental are protected while retaining the flexibility to make laws as the occasion demands, all under the supervision of the sovereign people.
 

Appendix - Summary of Provisions of the Constitutions of the States of the United States of America

[To be provided by the author at the Symposium.]