Australian Popular Political Constitutionalism

Analysing the Australian convention debates of the 1890s, this article will show how the text of the Australian Constitution broke with British political constitutionalism by guaranteeing ‘the people’ a direct role in Australian political constitutionalism. This system of Australian ‘popular political constitutionalism’ has since led to distinct practices and debates. First, this unique form of political constitutionalism explains the implications the High Court has drawn from Sections 7 and 24 of the Constitution. The critical question for this jurisprudence is how the Court can protect the role of the people without undermining Australian political constitutionalism. Second, this popular political constitutionalism has also shaped the evolving role of proportionally elected upper houses in representing more than a simple majority in Australian parliamentary governance. This practice raises the question of how Parliament can move beyond majoritarianism without creating too many checks on political majorities.