Policing Popular Sovereignty: Royal Assent to an Anti-Democratic or Intolerant Constitutional Amendment

Abstract

Should Australia’s Governor-General refuse royal assent to an anti-democratic or intolerant constitutional amendment that has been approved at referendum? The limits on the Australian people’s power to amend their own constitution have, to date, been the subject of limited scholarship. Through application of Yaniv Roznai’s theory of constitutional unamendability, it is argued that political constitutionalism is a core tenet of the Australian constitutional order, a tenet which would likely call for a refusal of assent to an anti-democratic amendment. By contrast, Australia’s relatively weak tradition of legal constitutionalism would not stand in the way of an intolerant alteration to the Australian Constitution. Understanding the legitimate boundaries of the Governor-General’s authority is an ongoing project in Australian constitutional theory. However, these issues can provide fresh insight on long-running academic debates about the role of Commonwealth vice-regal representatives and the source of the Australian Constitution’s authority.