The Constitutional Conventions and Constitutional Change: Making Sense of Multiple Intentions

38 Pages Posted: 25 Oct 2017

See all articles by Harry Hobbs

Harry Hobbs

University of Technology Sydney, Faculty of Law

Andrew Trotter

Doogue O'Brien George

Date Written: October 25, 2017

Abstract

The delegates to the 1890s Constitutional Conventions were well aware that the amendment mechanism is the ‘most important part of a Constitution’, for on it ‘depends the question as to whether the state shall develop with peaceful continuity or shall suffer alternations of stagnation, retrogression, and revolution’. However, with only 8 of 44 proposed amendments passed in the 116 years since Federation, many commentators have questioned whether the compromises struck by the delegates are working as intended, and others have offered proposals to amend the amending provision. This paper adds to this literature by examining in detail the evolution of s 128 of the Constitution — both during the drafting and beyond. This analysis illustrates that s 128 is caught between three competing ideologies: representative and responsible government, popular democracy, and federalism. Understanding these multiple intentions and the delicate compromises struck by the delegates reveals the origins of s 128, facilitates a broader understanding of colonial politics and federation history, and is relevant to understanding the history of referenda as well as considerations for the section’s reform.

Keywords: constitutional change, constitutional amendment, s 128, legal history, Australian Constitution

Suggested Citation

Hobbs, Harry and Trotter, Andrew, The Constitutional Conventions and Constitutional Change: Making Sense of Multiple Intentions (October 25, 2017). Adelaide Law Review, Vol. 38, No. 1, 2017. Available at SSRN: https://ssrn.com/abstract=3059232

Harry Hobbs (Contact Author)

University of Technology Sydney, Faculty of Law ( email )

Sydney
Australia

Andrew Trotter

Doogue O'Brien George ( email )

Level 5/221 Queen Street
Melbourne, Victoria
Australia

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