Constituent Power and the Commonwealth Constitution: A Preliminary Investigation

Abstract

The concept of constituent power — with its connotations of revolutionary political change — does not appear to be a natural fit with the Australian constitutional tradition. Recent discussions of constituent power, however, define it in broad terms as the power to create or fundamentally alter a constitution. This wide definition suggests that any constitutional settlement, inclusive of the Commonwealth Constitution, would involve both initial and potentially ongoing exercises of constituent power. It is in this context that public law scholars have started to introduce the concept, or close equivalents, into Australian constitutional discourse. In this article, we argue that the initial impression of lack of fit should nonetheless be taken seriously. At least currently, the concept of constituent power can only be applied to Australia’s constitutional circumstances with significant caution and several qualifications.