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Does Australia Have A Constitution? Part I -- The Powers Constitution, Howard Schweber, Ken Mayer
Does Australia Have A Constitution? Part I -- The Powers Constitution, Howard Schweber, Ken Mayer
Howard Schweber
The conventional wisdom about the Australian Constitution is that it neither says what it means, nor means what it says. The gap between language and meaning is starkest in the sections on executive power, in which the explicit language vesting all executive power in the Governor-General is supplanted by the conventions of Responsible Government, according to a universally accepted view of what the constitutional framers intended to create. One consequence of this divergence between language and practice is that constitutional interpretation normally requires a series of finesses, in which much of the text is read out of the document entirely. …
Does Australia Have A Constitution? Part Ii -- The Rights Constitution, Howard Schweber, Ken Mayer
Does Australia Have A Constitution? Part Ii -- The Rights Constitution, Howard Schweber, Ken Mayer
Howard Schweber
In this article, we visit the question of whether Australia has a “genuine” constitution with respect to guarantees of individual rights. The Australian constitutional text lacks explicit rights guarantees, but various types of rights protections have been derived from the text through judicial construction. To test the Australian model, we compare three other cases -- the United States, the U.K., and Israel -- with respect to the relationship between text, convention, and constitutional ethos. Australia does not fit cleanly into any of these three models, although it displays elements of each. More importantly, the High Court’s extrapolation of rights from …