You probably already heard about the expression parliamentary sovereignty or the supremacy of parliament. Now, is it possible to use that expression and apply it to the federal parliament in Australia? Hello everyone, my name is Renato Costa, this is Aussie Law and today we will talk about...
the application of the concept of parliamentary sovereignty in Australia. So let's start by looking at what parliamentary sovereignty means. It was as early as the 17th century when this concept started to develop. First, in the decisions in the UK cases of Dr. Bohm's case in 1610 and the case of proclamations in 1611, there started to be this ventilation of the possibility, the perspective that the monarch did not have unrestricted law-making powers.
And this became even evident after the Glorious Revolution and the Bill of Rights from 1689, when Parliament became and was recognized as the supreme body in the land. So to act in a number of areas, including dispensing with and suspending laws, the monarch now had to have the consent of Parliament. In 1915, a British legal scholar named A. V. Dicey He wrote in his very famous book, An Introduction to the Study of the Laws of the Constitution, that the principle of parliamentary sovereignty means that Parliament has, under the English Constitution, the right to make or unmake any law whatever, and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament. These words lay the foundation of the of what the principle of parliamentary sovereignty is.
It refers to the unrestricted possibility of Parliament to legislate with respect to any subject matter whatsoever without being limited by anybody, the judiciary included. That's why one of the versions of this concept is called parliamentary supremacy, because Parliament now is supreme over all the other branches. But this is not absolute though, this is not an absolute sovereignty, because there are some limits that must be imposed on Parliament. And the one that I wanted to highlight here is that no Parliament can pass a law that will bind another Parliament.
It's not possible for Parliament to limit another Parliament. So all in all this principle is saying that even though Parliament cannot bind another Parliament, it can pass any law it wants and it's not limited by the judiciary or any other body. If Parliament enacts a law, that law will remain valid until Parliament otherwise provides. In Australia, however, this concept is different and much narrower than the version that we see in the UK. Since we have a written constitution and a federal system of state, parliamentary sovereignty in Australia is limited.
In the Australian context, Parliament has the right to create, amend and repeal laws, and it does take priority over the executive and the judiciary, at least in terms of the law-making powers. In fact, as I said in our previous video, Parliament is the repository of the political power. So in this sense then, we could say that the Australian Parliament is sovereign.
But the powers of the Australian Parliament are nonetheless limited. So our version of parliamentary sovereignty here is more limited. Because of the written constitution and of federalism, Parliament is bound by the constitutional provisions and it must also respect the continuing existence of the states and their parliaments. So the Federal Constitution of the Commonwealth of Australia limits the sovereignty of the Australian Parliament.
This means that, differently from the UK and the Westminster parliaments, the Parliament in Australia is limited according and with respect to the content of the laws it can enact. There are some implied and express prohibitions on what Parliament can legislate about. Furthermore, parliament cannot legislate in a way that will bind another parliament and also here in australia the courts can question the validity of an act of parliament so these three aspects that i have just highlighted are the key aspects in the application of the concept of parliamentary sovereignty here in australia so let's review them now one while the uk parliament can enact any law in any subject matter it wants in australia the federal parliament will only enact laws according to the ex express text of the Australian Constitution. The residue of the subject matters that are not expressed in the text of the Constitution then belong to the states and the states'parliaments will legislate about them.
Two, in the UK one parliament cannot bind another parliament, otherwise we would be making and could potentially be making any successive parliament more and more powerless. And here in Australia it's also not possible for the Australian parliament to bind a successive parliament. Except with respect to something that is called manner and form.
Manner and form are legal mechanisms that exist to entrench certain provisions, some procedural steps that will help prevent the alteration of the law. They exist to shield the positive law from modification. So only if parliament follows the manner and form imposed in the law, then that law can be modified. Otherwise parliament cannot just change the law as it wants.
So it's only in this sense and in this respect that one parliament can bind another. We will later have another video explaining the manner and form provisions in detail. So don't worry about that right now.
But one thing that you can do is click the like button, subscribe to our channel and also click the join button because now you can also become a member of Aussie Law. And the third aspect is that in the UK, no court can question the material legal validity of an Act of Parliament. But in Australia, as you already know, the system of judicial review does allow a court, and particularly the High Court of Australia. to assess the constitutionality of an Act of Parliament and therefore strike it potentially as invalid.
That's a huge difference between the UK and the Australian Parliament because here the courts, the judiciary can actually invalidate a law. So is the Australian Parliament sovereign? Yes, at least in one sense, yes. It's just not as sovereign as the Parliament of the UK. I