Popular Sovereignty and the Nationhood Power

The Australian Constitution and National Identity

“…However, it should be noted that there are clear dangers in allowing 'the people' to have complete power over identity through their Parliament. While we laud the representative character of our Parliament, 55 and thus it being a reflection of 'the people', the system in place is majoritarian. It allows for the majority to outvote a minority and thus for a majority alone to determine and restrict membership.…”

“…The prevailing views of 'the people' as at Federation differ from the typical views of today. 55 The Parliament is also the representative of 'the people', and thus the people themselves have a self-constitutive power to determine their own identity. 56 The people choose the Parliament that influences the constitutional contours of who 'the people' are.…”

“…Even the cases about the implied freedom of political communication and the implied right to vote tend to be couched in technical, legal language, virtually impenetrable to the non-lawyer. 50 54 and Wik Peoples v Queensland ('Wik') 55 made a significant impression on the national psyche, with Mabo (No 2) earning a reference in that iconic distillation of Australian identity, The Castle. 56 More recently, Love, 57 in which the Court held Aboriginal people could not be aliens in Australia, received extensive attention in the general media.…”

“…Flaws that are recognized while discussions are still going on should be corrected before they become entrenched in the Constitution as part of the basic law of the land, when they can be changed only by amendments to the Constitution. 55 54 For example, the constitutional amendment procedure should be drafted with a high degree of precision to avoid any doubt over the applicable requirements to make future changes, whereas it may be desirable for a provision guaranteeing equal treatment to be drafted more simply and abstractly to allow flexibility in its application in future cases. 55 Chrétien (n 9) 308.…”

“…55 54 For example, the constitutional amendment procedure should be drafted with a high degree of precision to avoid any doubt over the applicable requirements to make future changes, whereas it may be desirable for a provision guaranteeing equal treatment to be drafted more simply and abstractly to allow flexibility in its application in future cases. 55 Chrétien (n 9) 308.…”