Sovereignty of parliament

Define sovereignty of parliament (2 marks)

The principle that Parliament is the supreme law-making body: it can make, amend or repeal any law, and statute law overrides other sources of law such as common law. In Australia it is limited by the Constitution and federalism.

Where does sovereignty of parliament come from?

Inherited from Britain's Westminster system.

Why is sovereignty of parliament stronger in Britain than Australia?

The UK has no single written constitution and is not a federation, so nothing limits what its Parliament can make laws about.

What does 'no Parliament can bind a future Parliament' mean?

Any law one Parliament makes can be amended or repealed by a later Parliament. A Parliament cannot lock in a law forever.

Example: a future Parliament undoing a past Parliament's law

The carbon tax: introduced in 2011 and repealed in 2014.

What is democratic legitimacy?

The right to make laws because the people gave you that power. Parliament is the only part of the system directly elected, so it represents the will of the people.

Why is Parliament more accountable than judges?

Voters can remove MPs at elections. Judges are appointed, not elected, and cannot be voted out.

Who appoints High Court justices?

The Governor-General, on the advice of the executive (Attorney-General and Cabinet), under s72. NOT Parliament.

Statute law vs common law: who makes each?

Statute law is made by Parliament (Acts). Common law is made by judges through decisions in cases (precedent).

If statute law and common law clash, which wins and why?

Statute law, because Parliament is elected and has democratic legitimacy; judges are not elected.

What does 'abrogate' mean?

When Parliament passes a statute that cancels or overrides a precedent set by the courts.

Example of Parliament abrogating common law

The Civil Liability Act (WA) limited the damages courts could award in civil cases after public concern about large payouts.

What does 'codify' mean?

When Parliament writes an existing common law rule into a statute, e.g. Crimes Acts taking over criminal law.

Give 2 reasons statute law is better at reflecting society than common law

1) Parliament can change statute quickly and deliberately to reflect the people's will. 2) Common law changes slowly, case by case, and only when a case comes to court.

Limit 1: how does the written Constitution limit Parliament?

The Commonwealth Parliament can only make laws on the topics it is given, mostly in s51 (e.g. defence, taxation, immigration). Laws outside these are invalid.

Can Parliament change the Constitution itself?

No. Under s128 a change needs a referendum passed by a double majority, so the Constitution sits above Parliament.

Double majority

A national majority of voters AND a majority of voters in a majority of states (4 of 6).

What is federalism?

A system where law-making power is divided between a central (Commonwealth) government and regional (state) governments.

Limit 2: how does federalism limit sovereignty of parliament?

Power is shared, so no single Parliament is supreme over everything. The Commonwealth is supreme nationally, and the states are supreme in their own areas.

Residual powers

Powers not given to the Commonwealth that stay with the states, e.g. education, health, criminal law.

What does s109 say?

If a valid Commonwealth law and a state law clash, the Commonwealth law prevails (to the extent of the inconsistency).

Limit 3: what is judicial review?

The High Court's power to declare a law invalid if Parliament goes beyond its constitutional powers.

Example of judicial review

The Communist Party case (1951): the High Court struck down the Commonwealth law banning the Communist Party.

Judgement: how sovereign is the Australian Parliament?

Supreme to a limited extent: supreme over the courts on common law, but limited by the Constitution, federalism and judicial review.