Remembering Australian Constitutional Democracy
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/0067205X241274844 |
| Author | William Partlett |
| Date | 01 September 2024 |
Special Issue: Positive Democratic Constitutionalism in Australia
Federal Law Review
2024, Vol. 52(3) 264–292
© The Author(s) 2024
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DOI: 10.1177/0067205X241274844
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Remembering Australian
Constitutional Democracy
William Partlett*
Abstract
For many years, historical accounts of Australian Federation ignored the distinctive ideological
origins of the Australian Constitution. From the mid 1980s until the 2000s, however, a generation of
historians remembered how the Australian drafters built a distinctive constitutional democracy that
combined trust in parliament with a direct constitutional role for a plural ‘people’: the people of
Australia and the people of the states. Drawing on Chartist and American ideas of popular
sovereignty, this system of popular political constitutionalism textually guarantees that ‘the people’
can ‘directly’choose both houses of parliament, break deadlocks between these houses and make
constitutional law. The definition of ‘the people’in this distinctive form of constitutional democracy
was, however, racially exclusive. In particular, First Australians were excluded from the plural
people of Australia.
This intellectual history of the Australian Constitution, however, has had remarkably little impact on
constitutional interpretation and discourse. This paper will begin the process of examining those
implications. First, it will show how this history provides important contextual support and di-
rection to the implied limitations on parliamentary power that stem from the constitution’s
guarantee of representative democracy in sections 7 and 24 of the Constitution. Second, it will
demonstrate how it aids in better understanding Australia’s unique constitutional system. To date,
this system has remedied the racist roots of the original constitutional definition of the people
largely through legislative reform. The constitutional recognition of First Austral ians is a critical step
in acknowledging that First Australians are a distinct part of the plural Australian people. In the
aftermath of the failure of the First Nations Voice to Parliament proposal, meaningful constitutional
recognition for First Australians must address their structural exclusion from the plural Australian
people.
Accepted 12 February 2024
*Associate Professor, Melbourne Law School, University of Melbourne.
‘Learned commentators observing the situation from a vantage point outside Australia wrote of the
extremely “democratic”nature of the new Constitution, representing “the high-water mark of popular
government”’.
1
‘The great underlying principle [of the Australian Constitution] is, that the rights of individuals are
sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political
power’.
2
In legal circles, the Australian Constitution is frequently viewed as a technical rule book that
creates a form of representative democracy drawn from British parliamentary sovereignty.
3
Justice
Keane of the Australian High Court, for instance, described the Constitution as a ‘small brown bird’
that is ‘modest’and ‘in sober historical fact, a schedule to an enactment of the Imperial Parliament at
Westminster’.
4
This article will argue that this understanding is underpinned by the fact that most
historical accounts (even current ones) ignore the distinctive intellectual origins of the Australian
Constitution.
5
This historical blind spot has allowed many Australian lawyers to (mistakenly) view
the Constitution as a pragmatic and prosaic combination of federalism with British parliamentary
sovereignty.
6
From the mid-1980s to the 2000s, a generation of Australian intellectual and cultural
historians filled this blind spot.
7
They described the significance of Chartist constitutional ideas
on constitution-making in the Australian colonies that occurred during the middle of the 19
th
century.
8
These Chartist ideas broke with parliamentary sovereignty and instea d saw ‘fixed
principles of fundamental law’guaranteeing a central role for ‘the people’in representative
democracy.
9
These ideas shaped colonial constitutions and their near universal manhood
suffrage for the lower house of Parliament. They also shaped section 41 of the Austra lian
1. McGinty v Western Australia (1996) 186 CLR 140, 271 (Gummow J) (quoting James Bryce, Studies in History and
Jurisprudence (Oxford University Press, 1901) vol 1, 536.
2. Harrison Moore, The Constitution of the Commonwealth of Australia (Cambridge University Press, 1902) 329 (‘Moore’).
3. Nicholas Aroney et al, The Constitution of the Commonwealth of Australia (Cambridge UniversityPress, 2015) 32, 237
(describinghow Australia has a modified version of parliamentary sovereigntythat must accommodate federalism); Jeffrey
Goldsworthy, ‘Constitutional Implications Revisited’(2011) 30(1) University of Queensland Law Journal 2 (describing
how the Australianframers ‘continued within the British constitutionaltradition’)(‘Goldsworthy-Implications Revisited’).
4. Justice Patrick Keane, ‘In Celebration of the Constitution’(Speech, Banco Court Brisbane, 12 June 2008).
5. Goldsworthy (n 3); Nicholas Aroney et al (n 3) 32; Leslie Zines, The High Court and the Constitution (Butterworths, 3
rd
ed, 1992) 339; Anthony Mason, ‘The Australian Constitution in Retrospect and Prospect’in Robert French, Geoffrey
Lindell and Cheryl Saunders (eds), Reflections on the Australian Constitution (Federation Press, 2003) 7, 8.
6. See, eg, Ben Saunders and Simon Kennedy, ‘Popular Sovereignty, “the People”and the Australian Constitution: A
Historical Reassessment’(2019) 30(1) Public Law Review 36 (‘the framers accepted key tenets of British constitu-
tionalism such as the sovereignty of Parliament’).
7. See, eg, Helen Irving, To Constitute a Nation: ACultural History of Australia’s Constitution (Cambridge University Press,
1999) (‘Irving’); John Hirst, The Sentimental Nation: The Making of the Australian Commonwealth (Oxford University
Press, 2000) (‘The Sentimental Nation’).
8. Paul Pickering, ‘The Oak of English Liberty: Popular Constitutionalism in New South Wales, 1848–1856’(2001) 3(1)
Journal of Australian Colonial History 1 (discussing how Chartism rejected parliamentary sovereignty); Paul Pickering
(2001) ‘AWider Field in a New Country: Chartism in Colonial Australia’in Marian Sawer (eds), ElectionsFull, Free and
Fair (Federation Press, 2001) 28; Terry Irving, The Southern Treeof Liberty: The Democratic Movement in New South
Wales Before 1856 (Federation Press, 2006).
9. Josh Gibson, ‘The Chartists and the Constitution: Revisiting British Popular Constitutionalism’(2017) 56(1) Journal of
British Studies 56, 81–82 (describing the Chartist view that the people had a natural right to a broad form of suffrage and to
meet peaceably).
Partlett 265
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