Parliamentary Sovereignty in Australia

What is parliamentary sovereignty

Parliamentary sovereignty is a constitutional convention that holds parliament as the supreme law maker of government. British jurist and political theorist A V Dicey described it in 1885: “Parliament has… the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law… as having a right to override or set aside the legislation of Parliament.”

Dicey identified 3 characteristics of parliamentary sovereignty:

  1. There are no limits to the law’s parliament can make.
    2. Parliament, however, cannot make laws which bind future parliaments.
    3. The courts cannot question a valid law made by parliament.

Parliamentary sovereignty in Australia

One key difference between the sovereignty enjoyed by British parliament and that of Australia is that parliamentary sovereignty does not exist in its purest form in Australia. A major contributing factor to this difference is the Australian Commonwealth Constitution.

The Commonwealth Constitution restricts the sovereignty of parliament in many ways. As some examples, parliament cannot change the constitution without a referendum, parliament cannot pass a law which imposes a cost on trading activities between the states, and state parliaments cannot legislate inconsistently with the laws of the Commonwealth.

Is parliamentary sovereignty a good or bad thing?

There are arguments both in favour of parliamentary sovereignty and against it. Parliament is the only branch of government which consists of entirely elected officials. Parliament is dependant on the people for votes in order to stay in power. Thus, it has been argued that parliament would care more about the interests of the people than any other branch of government, as the people hold the power to re-elect. This is a distinction known as political sovereignty – a legally sovereign parliament COULD technically legislate in any way they please, but if they pass laws which are tyrannical or oppressive, the people would reject the laws and seek action to remove the current government from power.

An argument against parliamentary sovereignty revolves around the lack of firm constraints on the power. Australia has no codified Bill of Rights as the United States does. Thus, whilst there are political implications for an improper use of parliamentary power, and some protection in the Constitution and statutes, there are few legal limits to the laws that parliament can make. This means that parliament could potentially legislate against human rights. Historical examples include suffrage for women and Indigenous people, whilst cases in the UK such as R (Simms) v SS for the Home Department have shown this to be a modern possibility.

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