Sovereignty under the Australian Constitution: Why is Section 6 of the Australia Acts Binding on State Parliaments?

Article


Crowe, Jonathan. 2023. "Sovereignty under the Australian Constitution: Why is Section 6 of the Australia Acts Binding on State Parliaments?" University of Queensland Law Journal. 42 (3), pp. 347-369. https://doi.org/10.38127/uqlj.v42i3.8471
Article Title

Sovereignty under the Australian Constitution: Why is Section 6 of the Australia Acts Binding on State Parliaments?

ERA Journal ID33967
Article CategoryArticle
AuthorsCrowe, Jonathan
Journal TitleUniversity of Queensland Law Journal
Journal Citation42 (3), pp. 347-369
Number of Pages23
Year2023
PublisherThe University of Queensland Press
Place of PublicationAustralia
ISSN0083-4041
Digital Object Identifier (DOI)https://doi.org/10.38127/uqlj.v42i3.8471
Web Address (URL)https://journal.law.uq.edu.au/index.php/uqlj/article/view/8471
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.

KeywordsAustralian Constitution; Australia Acts
ANZSRC Field of Research 2020480702. Constitutional law
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Byline AffiliationsSchool of Law and Justice
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