The Need for Australian Constitutional Theory

Abstract

This article was published to help launch the Australian Constitutional Theory project, whose purpose was to examine fundamental aspects of the Australian polity and constitution. The author poses a series of questions for Australian constitutional theory in the 1990s: questions for whom traditional responses are no longer adequate. These include: democracy, rights, federalism, judging, and the rule of law. Whilst advocating the development of an Australian constitutional theory, the author discusses the mistakes theory laden work can fall into, in particular the problem of importing theory. Key distinctions about the Australian context are discussed, especially the primacy of federalism, limited government and the diffusion of power, and the problems and undesirability of searching for an original intent in Australian constitutionalism (which forms a response to Professor Greg Craven).