Dawson is now in a minority of one on a High Court Bench on a fundamental constitutional question: the location of ultimate sovereignty in Australia.
Dawson’s approach is the classic legalistic one. He says the power and authority of the Constitution comes from the British Parliament, not the Australian people.
In the broadcasting-ban case last week he said: “”And the Constitution is itself a law declared by the Imperial Parliament to be “binding on the courts, judges and people of every state and every part of the Commonwealth’. It does not purport to obtain its force from any power residing in the people to constitute a government. The legal foundation of the Australian Constitution is an exercise of the sovereign power by the Imperial Parliament.”
The other six judges said, some of them for the umpteenth time, that ultimate sovereignty resides in the Australian people. Some have said that was the case since 1901 others have said it was the case since the passing of the Australia Act by the British Parliament in 1986. Justices Deane and Toohey said “” all powers of government ultimately belong to, and are derived from, the governed.”
Dawson, however, dismissed as “”an abstract proposition of political theory that the Constitution ultimately depends for its continuing validity upon the acceptance of the people, but the same may be said of any form of government which is not arbitrary”.
Dawson said it followed that there was no implied provision in the Constitution that the people have a right to vote to chose their representatives nor any right to communicate on political issues to make that vote efficacious.
I think the Dawson view is the correct one logically, and in the short term it has a lot going for it. Let me explain.
Any ordinary reading of the Constitution and its preamble shows it is laced with references to the Queen and the British Parliament. At best it states the people of Australia have agreed to what the British Parliament did. It did not state that we, the people of Australia, have an inalienable right to govern ourselves, and this is how we will do it.
It is just sophistry to say our Constitution is a democratic one, founded on the sovereignty of the people, when the thing itself states to the contrary, as Dawson has pointed out.
It is even greater sophistry to deduce from that some form of limited freedom of communication to discuss public and political affairs. And dangerous sophistry at that.
Deane and Toohey, for example, ruled that the implied freedom of communication did not give an untrammelled right to say anything; some prohibition or control would be allowed. They said it would be unwise and impractical to identify them in advance. Prohibitions and restrictions could be justified if “”viewed in the context of the standards of our society” they were in the public interest and did not go beyond what was reasonably necessary for an ordered society or the protection of legitimate claims of individuals to live peacefully and with dignity.
That test, when future cases come up, puts into the hands of judges a social judgment (“”the standards of our society”), not a legal one.
There is nothing especially wrong with that, provided the people of Australia agree that that should be the court’s role. To date, that has not happened. It should.
I agree with the sentiments of the six judges entirely, but I doubt whether this is the best way to go about it. Yes; freedom of communication is a Good Thing. Yes; the sovereignty of the people should be the fountain of a Australian form of governance. But let’s state it clearly, not have an artful reinterpretation of a clapped-out Constitution. The majority six have done their best with a limited tool. But all they may succeed in doing is to lull Australians into a false belief that they have a democratic Constitution which guarantees freedom of speech.
I would have preferred if the Dawson view had been the majority one: then the Australian people would have taken more notice of the ludicrous wording of the document and been more motivated to create a genuine Australian sovereignty with a full Bill of Rights, rather than have a second-rate one carved in sophistry and artistry by the High Court.
Under that new sovereignty it may well be the people give the High Court a large role in giving effect to the individual freedoms in a Bills of Rights, and its wider reputation over the past 90 years should give us little doubt about its capacity to do the job. But let’s do it by the front door.