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Law and Democracy

Law and Democracy: Contemporary Questions

Glenn Patmore
Kim Rubenstein
Copyright Date: 2014
Published by: ANU Press
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  • Book Info
    Law and Democracy
    Book Description:

    Law and Democracy: Contemporary Questions provides a fresh understanding of law’s regulation of Australian democracy. The book enriches public law scholarship, deepening and challenging the current conceptions of law’s regulation of popular participation and legal representation.

    eISBN: 978-1-925022-06-3
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
    Glenn Patmore and Kim Rubenstein

    • 2. Democracy and the Constitution: The People Deciding the Identity of ‘the people’
      (pp. 11-26)
      Elisa Arcioni

      The phrase ‘the people’ appears at the beginning of the preamble to the Australian Constitution, where the people of the colonies are recognised as ‘the people’ who ‘agreed to unite in one indissoluble federal Commonwealth’. That agreement is a reference to the referenda held in each colony to accept the draft Constitution, which had been drafted by predominantly elected delegates to the constitutional conventions in the late 1890s.² Those conventions resulted in aConstitution Billwhich was taken to the United Kingdom by the Australian delegation and, with one significant alteration,³ was passed by the Imperial Parliament.

      There had been...

    • 3. Thick and Thin Citizenship as Measures of Australian Democracy
      (pp. 27-44)
      Kim Rubenstein and Niamh Lenagh-Maguire

      The importance of Australian citizenship can be obscured by its relatively sparse legal foundations, and by the omission of an expressly defined concept of citizenship from the Australian Constitution. However, one of the ways in which the legal status of citizenship is elevated beyond an empty label and given substance is the linking of citizenship with the structures of Australian democracy. This connection between a statutory label and Australia’s constitutionally-mandated system of representative government also lends citizenship an important constitutional dimension that otherwise might be lacking. With limited exceptions, it is citizens who vote to elect governments at local, state...

    • 4. The Right to Participate: Revisiting Roach and Rowe
      (pp. 45-62)
      Glenn Patmore

      As is well known, the Constitution does not refer to the words ‘democracy’, ‘representative democracy’, ‘representative government’ or ‘referendum democracy’. Nonetheless the High Court has been willing to imply recognition of these foundational principles. Most of the cases have considered the implied freedom of political communication. More recently, the High Court recognised a constitutional protection of a right to vote and to participate in membership of the political community.²

      This is a significant development in the jurisprudence of the High Court, but it remains a relatively limited conception of the right to participate.³ This chapter outlines a broader conception — the...


    • 5. Ministerial Advisers: Democracy and Accountability
      (pp. 65-84)
      Yee-Fui Ng

      Ministerial advisers, personally appointed by Ministers, and working out of their private offices, have become an integral part of the political landscape over the last 40 years.

      At federation, the very idea of ministerial advisers would have been denigrated, as the framers of the Constitution did not believe in ‘making room for political friends’.² They believed that it would lead to the ‘spoils system’ in the United States, where high and low official positions were used to reward friends and offer incentives to work for the political party, resulting in a system that was corrupt and inefficient.

      Despite this, the...

    • 6. Applied Law Schemes and Responsible Government: Some Issues
      (pp. 85-112)
      Joe Edwards

      An ‘applied law scheme’ is a type of cooperative legislative scheme in which one jurisdiction enacts a model law which is then ‘picked up’ or ‘applied’ by another jurisdiction or group of jurisdictions. In the 1990s, applied law schemes were the ‘next big thing’ in Australian federalism; a way of achieving that hallowed goal, uniformity of regulation across the nation, in circumstances where there was no political will, or constitutional power, for the enactment of a Commonwealth law. But then, inR v Hughes,¹ the High Court raised serious questions about the constitutional validity of the most significant applied law...


    • 7. Ritual in the Law of Electoral Democracy
      (pp. 115-130)
      Graeme Orr

      For all its concern with power, prestige and politics, public law can be an earnest and colourless topic. The corner of public law I inhabit is the law of politics, especially electoral democracy. It is particularly dominated by a concern with process. On top of that, it is not well theorised. In part, this is because it is an emerging sub-discipline. It has been jointly sired by constitutional and administrative law, and by that branch of political science concerned with electoral systems and behaviour. But the law of politics is also under-theorised because it is seen as an essentially pragmatic...

    • 8. Performing Citizenship, Embodying Obedience
      (pp. 131-152)
      Anne Macduff

      In March 2003, an Australian citizen and a British citizen protested against Australia’s invasion of Iraq. The two men painted ‘NO WAR’ in red capital letters on the iconic white sails of the Sydney Opera House. A NSW local court found both men guilty of malicious damage and ordered them to serve weekend detention. The media later reported that immigration officials detained the British citizen and considered cancelling his visa.³

      Although protests like this one are controversial, they are an important display of active citizenship. Active citizenship is more than political participation within the existing framework of laws and institutions,⁴...

    • 9. People You Might Know: Social Media in the Conflict Between Law and Democracy
      (pp. 153-172)
      Stephen Tully

      Twitter and other blogs, Facebook, emails, SMS messages, LinkedIn, Youtube and Flickr are ubiquitous forms of communication within modern society. The role of these tools in enabling individuals to express their political opinions, as well as whether and how social media should be regulated, have emerged as questions of considerable interest. However, the issue of locating social media within a possible conflict between regulation and democracy remains underexplored. Law is just one of the forces or ‘regulators’ that control and define systems such as the internet, the others being markets, architectures and norms.² Civil or political liberties within cyberspace will...

  7. Notes on Contributors
    (pp. 173-174)