Elisa Arcioni (University of Sydney Law School) and Adrienne Stone (University of Melbourne Law School) have posted Constitutional Change in Australia: The Paradox of the Frozen Continent (Routledge Handbook on Comparative Constitutional Change, edited by Alkmene Fotiadou and Xenophon Contiades (forthcoming)) (19 pages) on SSRN. Here is the abstract:
The story of constitutional change under the Australian Constitution has several strands. On the one hand, the Constitution is relatively difficult to change with an unusually rigorous amendment procedure. The Constitution’s rigidity is buttressed by a strong (though not unbroken) tradition of judicial legalism, characterised in the constitutional context by a commitment to textualism and a moderate form of originalism.
At the same time, there are a number of forces that call into question the significance of the rigidity of the Australian Constitution. If the focus of inquiry is limited to the formal written Constitution, the dominant narrative of Australia as “[c]onstitutionally speaking … a frozen continent” has some force. In this chapter, however, we seek to broaden the lens. We argue that the Constitution’s narrowness in fact facilitates political change, some of which rises to the level of informal constitutional change. In particular, we seek to show that judicial legalism has been deployed in ways that call into question the claim that it has stymied constitutional development. Finally, we argue that the social role of the Constitution is slowly, subtly shifting, which indicates a disruption of the orthodox view of the Constitution and which may in turn provide increased impetus for constitutional change in Australia.
The picture of constitutional change that the Australian model presents is thus particularly complex, demonstrating the cross-cutting forces of constitutional form, legal tradition and politics. It shows, moreover, that understandings of, and approaches to, constitutional change may themselves change over time.
To present this picture we will start this chapter with an overview of the Constitution before moving to discuss formal and informal change of the Constitution including distinct questions about change posed in the Australian setting.
Posted at 6:26 AM