Sovereignty Under The Australian Constitution: Why is Section 6 of the Australia Acts binding on State Parliaments?' by Jonathan Crowe in (2023) UQ Law Journal comments
Section 6 of the' Australia Acts 1986 provides that, when a State law concerns the ‘constitution, powers and procedure’ of the State Parliament, it must abide by any relevant ‘manner and form’ requirements in previous legislation. This provision is generally accepted as imposing a binding limitation on the sovereignty of State Parliaments. However, the reason why this section is binding on State Parliaments is disputed. This article begins by discussing the concept of sovereignty in philosophical terms, before turning to the history of sovereignty in Australia. It explores the role of the Australia Acts in the constitutional system, focusing on their implications for constitutive power in the States, then looks specifically at s 6 and its capacity to bind State Parliaments. I argue that attempts to explain the authority of s 6 by appealing to the United Kingdom or Commonwealth Australia Acts fail. The only satisfactory explanation appeals to the idea that the Australian Parliaments acting together have a special form of sovereignty that allows them to make certain kinds of constitutional changes. This conclusion has important implications for how constitutive power is understood in Australia today.
The Australia Acts 1986 are a truly extraordinary package of legislation. They consist of two Australia Acts passed by the Commonwealth and United Kingdom Parliaments, respectively, preceded by six Australia Acts (Request) Acts enacted by the State Parliaments. The legislation made important changes to Australia’s constitutional system, particularly regarding Australia’s relationship to the United Kingdom, but also concerning the powers of State Parliaments. The unique way that the Australia Acts were enacted was intended to harness the combined sovereignty of the eight distinct Parliaments involved. Nonetheless, questions still arise about the source of the legislation’s authority to change Australia’s constitutional arrangements. This issue holds the potential to illuminate the notion of sovereignty in Australia, including both its historical development and its current status. Section 6 of the Australia Acts provides that when a State law concerns the ‘constitution, powers and procedure’ of the State Parliament, it must be passed in accordance with any relevant ‘manner and form’ requirements. This provision is generally accepted as imposing a binding limitation on the sovereignty of State Parliaments. However, the reason why this section is binding on State Parliaments is disputed. No satisfactory explanation for this conclusion has been provided, including by the High Court. This article begins by discussing the concept of sovereignty in philosophical terms, before turning to the history of sovereignty in Australia. It explores the role of the Australia Acts in the constitutional system, focusing on their implications for constitutive power in the States, then looks specifically at s 6 and the source of its ability to bind State Parliaments to manner and form requirements. Why, then, does s 6 of the Australia Acts bind the States?
Explanations based on the authority of the United Kingdom or Commonwealth versions of the Australia Acts are unconvincing. I argue that the only satisfactory explanation appeals to the idea that the Australian Parliaments acting together have a special form of sovereignty that allows them to make certain kinds of constitutional changes. This explanation derives from the distinctive process used to enact the Australia Acts themselves. The proposal might seem undemocratic when compared with the referendum process under s 128 of the Constitution. However, it is consistent with the role played by parliamentary bodies in the Australian system — not only as organs of representative democracy, but also as repositories of constituent power.
