Parliaments are not Supreme

Wayne Glew claims that Parliaments are not supreme or sovereign, relying on cherry-picked passages in pages 676 1 and 791 2 of Quick and Garran, which he uses in response to the well established doctrine of Parliamentary Sovereignty.

The Parliament is not supreme, and the very essence of the Federation is that it should not be so.”

“The Federal Parliament and the State Parliaments are not sovereign bodies, they are legislatures with limited powers, and any law which they attempt to pass in excess of those powers is no law at all, it is simply a nullity, entitled to no obedience.”

I don’t use the term ‘cherry-picked’ lightly either, because Quick and Garran actually go into great detail explaining this notion in ss 160, “The Plenary Nature of the Powers” (page 509), in ss 330(3) “As a Federal Constitution” (page 794), and also ss 444 “The States” (page 928).

Of course the Commonwealth Parliament is not supreme or sovereign in an absolute sense, as in any federalist structure the legislative powers are divided between the Commonwealth and the States, which each having specific areas in which they can legislate. If the Commonwealth Parliament was sovereign, (as was Westminster) there would be no need for State Parliaments, Residual or Concurrent Legislative Powers, every area of law would be Exclusive to the Commonwealth Parliament. This is simply not the case, as Quick and Garran make clear. It must be difficult to comprehend this point when one is in denial that the States are in sole possession of the sphere of Residual Legislative Powers. (See page 935) 3

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The Parliaments, both State and Commonwealth, are only supreme and sovereign over the particular sphere of powers allocated in the Constitution. If they legislate outside of their particular sphere, the law is ultra vires, unconstitutional, and entitled to no obedience at all. The Commonwealth is sovereign and supreme in the sphere of Exclusive and Concurrent Legislative Powers, and the States are sovereign and supreme in the sphere of Residual Legislative Powers. As Quick and Garran state on page 794: 4

“The Constitution draws a line between the enumerated powers assigned to the Federal Government and the residue of powers reserved to the State Governments. Both sets of Governments are limited in their sphere of action, but within their several spheres they are supreme.”

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On the same page, there is a note, “See ss 160, The Plenary Nature of the Powers.” this section on page 509, 5 highlights the plenary or absolute nature of the powers within these spheres, when made by their respective parliaments. They are, as Quick and Garran note, as plenary as the Imperial Parliament itself.

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As noted in Durham Holdings Pty Ltd v New South Wales (1999) HCA 7: 6

“In Union Steamship Co of Australia Pty Ltd v King (1988) HCA 55, 7 the Court stated that, within the limits of the grant, a power such as that conferred on the New South Wales Parliament by s 5 of the Constitution Act 1902 (NSW) to make laws “for the peace, welfare, and good government of New South Wales” is “as ample and plenary as the power possessed by the Imperial Parliament itself”. Moreover, at the time of the 1990 Act, the Australia Act 1986 (Cth) was in force. Section 2(2) thereof declared and enacted that the legislative powers of each State Parliament included all legislative powers that Westminster might have exercised before the commencement of that Act for the peace, order and good government of the State.”

On page 928, 8 Quick and Garran make very clear that the Commonwealth Government cannot encroach on the sphere of the Residual Legislative Powers… they are solely the possession of the State Governments, and they are each sovereign over their own sphere of legislative powers.

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A point that must be taken into consideration when reading various parts of Quick and Garran’s commentary, is that it is the 1901 perspective in relation to the Imperial Parliament, which has since become obsolete. We were, at the time, still subject to the Colonial Laws Validity Act 1865, which provided that colonial laws were invalid if they were repugnant with UK law. When the British Empire ended and national status emerged, these external restrictions ceased, and constitutional powers could be given their full scope. This changed occurred on a Commonwealth level with the adoption of the Statute of Westminster 1931 by Australia in 1942, and on a State level with the passing of the Australia Act 1986.

Finally though, these things are very irrelevant to the doctrine of Parliamentary Sovereignty, it is a completely different subject matter. Parliamentary Sovereignty relates to the hierarchy of law-making powers within any given jurisdiction, (State or Commonwealth) and is further explained by the principle of Responsible Government. Both terms describe a system where the Executive and Judicial branches of government are responsible to, and answerable to, the Legislative branch, and that the legislature is the supreme law-making body within the particular constitutional structure.

Extract from Durham Holdings Pty Ltd v New South Wales (1999) HCA 7:

“There is little point in searching for additional expositions of, or foundations for,  the principle that courts will presume that legislation does not overrule the common law in the absence of clear and express terms, given that it is so clear and that it was not really contested by the State. In English legal history the principle can be traced back for at least 300 years and probably further. It has been applied countless times in Australia, including in the construction of legislation governing privately owned minerals and the public acquisition thereof. Secondly, the applicant invoked Sir Owen Dixon’s reminder that the principle of parliamentary supremacy is itself a doctrine of the common law.”

Extract from Carnes v Essenberg [1999] QCA 339: 9

“The supremacy of Parliament to make laws contrary to what had been the Common Law is expressly recognised by the Courts. It is enough to refer to the decision of the High Court in Kable v. The Director of Public Prosecutions, 189, Commonwealth Law Reports 51 at pages 73 to 74 in the judgment of Justice Dawson. His Honour pointed out that that champion of the Common Law, Chief Justice Coke, had in his Institute of the Laws of England in the early 17th century accepted that Magna Carta could be altered by English Parliament. Indeed he referred to Bills of Attainder which allowed for trial contrary to Magna Carta as being lawful enactments.

Justice Dawson went on: “Judicial pronouncements confirming the supremacy of Parliament are rare but their scarcity is testimony to the complete acceptance by the Courts that an Act of Parliament is binding upon them, and it cannot be questioned by reference to principles of a more fundamental kind.” The passage goes on and concludes: “There can be no doubt that Parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.” 

Extract from Gargan v Director of Public Prosecutions and anor [2004] NSWSC 10: 10

“(i) the appeal to scripture, that is to a moral principle higher than parliamentary sovereignty, is “out of line with the mainstream of current constitutional theory as applied in our courts” ( BLF v Minister for Industrial Relations (1986) 7 NSWLR 372 at 384 per Kirby P).

The same principle was applied by Lord Reid in British Railway Board v Pickin (1974) AC 765 in which he said: “In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded insofar as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete” (at 782)

To a like effect is the decision of the Privy Council in Liyanage v The Queen (1967) AC 259 in which it was held that an Act of the Parliament of Ceylon could not be challenged on the basis that it was contrary to the fundamental principles of justice. This argument fails.” 

Under the principle of Responsible Government, the Executive and Judiciary are responsible to, and answerable to, the Legislative branch. See R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 275; 11 McGinty (1996) 186 CLR 140 at 269; 12 Australian Capital Television Pty Ltd v Commonwealth (1992177 CLR 106 (Mason C.J. at 30; Dawson J. at 20; McHugh J. at 15) 13

The Engineers’ Case (1920) 28 CLR, per Knox C.J., Isaacs, Rich and Starke JJ. at p 147): “The principle of responsible government – the system of government by which the executive is responsible to the legislature – is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution.” 14

The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley (1926) 37 CLR 393, (Isaacs J.) at p 413: “It is part of the fabric on which the written words of the Constitution are superimposed.” 15

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