In a nation often described as politically stable and constitutionally conservative, a profound shift has taken place, one not marked by revolution or sweeping declarations, but by legal reasoning, referenda, and the gradual development of democratic practice. At the heart of it lies a deceptively simple question: who truly holds sovereign power in Australia?
For much of its early history, the answer seemed straightforward. The Australian Constitution, which came into force in 1901, derived its authority from an Act of the British Parliament. In strict legal terms, sovereignty rested with Westminster. Australia governed itself, but ultimate legal authority lay outside its borders.
Even at Federation, however, there were signs of a different story. The Constitution had been drafted by colonial representatives and approved by voters in referenda across the colonies. While not entirely a “people’s constitution,” it carried a clear democratic foundation.
By the late twentieth century, that foundation had matured into something more definitive. Legal scholars and judges began to articulate a distinctly Australian understanding of sovereignty, one grounded in the authority of the people rather than an external parliament. The passage of the Australia Act 1986 marked a decisive turning point, ending the British Parliament’s power to legislate for Australia. From that moment, the last formal ties of legal dependence were severed.
In a landmark judicial reflection, Chief Justice Anthony Mason explained this transformation as an evolution rather than a break. Although the Constitution began as an imperial statute, it now operates as the framework for a system in which elected representatives exercise power on behalf of the Australian people. Sovereignty, in this view, resides with the people themselves.
But what does that mean in practice?
According to Mason, it is not enough that representatives are elected. They must also be accountable. That accountability depends on a fundamental condition: freedom of communication, especially on political and public matters.
In a representative democracy, public discussion is essential. Citizens must be able to express opinions, criticise government actions, advocate for change, and engage in debate. This communication is not limited to politicians and voters, it extends across the entire community, including the media, interest groups, and individuals participating in civic life.
Without this freedom, the system begins to weaken. Government becomes less responsive, less representative, and ultimately less legitimate.
Today, the idea that sovereignty lies with the Australian people is widely accepted, not because it is explicitly written in the Constitution, but because it is embedded in how the system operates. Every election, every referendum under section 128, and every public debate reinforces the principle that authority flows from the people to their representatives.
MASON C.J.
37. The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign poweR which resides in the people is exercised on their behalf by their representatives. In the case of the Australian Constitution, one obstacle to the acceptance of that view is that the Constitution owes its legal force to its character as a statute of the Imperial Parliament enacted in the exercise of its legal sovereignty; the Constitution was not a supreme law proceeding from the people's inherent authority to constitute a government ((75) Sir Owen Dixon, "The Law and the Constitution", (1935) 51 Law Quarterly Review 590, at p 597.), notwithstanding that it was adopted, subject to minor amendments, by the representatives of the Australian colonies at a Convention and approved by a majority of the electors in each of the colonies at the several referenda. Despite its initial character as a statute of the Imperial Parliament, the Constitution brought into existence a system of representative government for Australia in which the elected representatives exercise sovereign power on behalf of the Australian people. Hence, the prescribed procedure for amendment of the Constitution hinges upon a referendum at which the proposed amendment is approved by a majority of electors and a majority of electors in a majority of the States ((76) s.128). And, most recently, the Australia Act 1986 (U.K.) marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people ((77) Lindell,"Why is Australia's Constitution Binding? - The Reasons in 1900 and Now, and the Effect of Independence", [1986] FedLawRw 2; (1986) 16 Federal Law Review 29, at p 49.). The point is that the representatives who are members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act. Freedom of communication as an indispensable element in representative government
38. Indispensable to that accountability and that responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticize government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.
39. Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion ((78) Lord Simon of Glaisdale made the point in Attorney-General v. Times Newspapers Ltd. (1974) AC 273, at p 315, when he said:
"People cannot adequately influence the decisions which
affect their lives unless they can be adequately informed on facts and
arguments relevant to the decisions. Much of such fact-finding and
argumentation necessarily has to be conducted vicariously, the public
press
being a principal instrument."). In truth, in a representative democracy,
public participation in political discussion is a central element of the
political process.