Sovereignty under the Australian Constitution

Abstract

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.