Parliamentary Sovereignty In Australia

Parliamentary sovereignty or supremacy is described as the concept wherein (1) the parliament has the right to make or unmake any laws and (2) no person is allowed to override or set aside the laws made by parliament. While analysing the concept of parliamentary sovereignty in Australia it is also of considerable importance to understand the underlying principles of “separation of powers” and the “rule of law”. The idea of parliamentary sovereignty was popularised by AV Dicey, according to Geoffrey de Q Walker (1985) , Dicey’s concept lacked support from precedents and is weak because the nature of sovereign power is contrary to the idea of parliament.

In Australia, the Constitution can be amended by the parliament and it is also within the

3. The Constitution (the law) is the result of previous judicial decisions determining the rights of private persons.

 This means the constitution is not the source of the law, but the consequence of inherent rights. We don’t derive our rights from the Constitution; the Constitution is the result of our rights.

According to WI Jennings (1959): Rule of Law means a limitation of power on every authority, except perhaps a representative legislature.A sovereign or any person acting on behalf of a state can only exercise a power as long as he can authorise his act through an existing law. Equality before the law is flawed – many legislations apply only to special classes, minor’s have different laws.

It can be said, that there are certain implications for the substantive content of the rule of law, due to the existence of a written constitution as the basic law of society. Both the federal parliament and the high court of Australia inherit their powers from the constitution and therefore regardless of how the law is made in Australia it must be in flow with the constitution. The same logic applies for any substantive principle said to flow from the rule of law

This case is an excellent example of both, the rule of law and judicial review of legislative action at work. During the cold war, even though Australia was not at war the parliament thought it necessary to enact a legislation to dissolve the Australian Communist Party and also empower the government to dissolve other similar unincorporated associations. Although the parliament has no such power to make laws on unincorporated associations, it does have power to make laws with respect to the military defence of Australian and therefore cited the same as the justification for the legislation it passed. So it was in the hands of the High Court to determine whether the law was relevant to the naval and military defence of Australia, not the parliament. Kitto J said that while following a unitary system of government, the judgment of the legislature as to whether the law was a law with respect to defence could not be challenged but under a Federal system the central legislature is equipped with limited powers only, and the duty is cast upon the courts to determine whether laws which that legislature thinks necessary for the security of the country are within the scope of its