A central claim of this book, as I outlined in the Introduction, is that the 1975 constitutional crisis was about methods of informal constitutional change and not merely about the precise institutional powers of the Senate and the Governor-General. By ‘informal constitutional change’ I mean constitutional change that occurs otherwise than in accordance with the formal referendum procedure that s 128 of the Constitution prescribes. I develop three aspects of this notion in this chapter. First, I defend the possibility of informal constitutional change, by showing how there is, at least in Australia, no easy distinction between ‘constitutional’ and ‘ordinary’ law, with the consequence that, as a matter of substance, constitutional law can come to be made and developed by use of ordinary lawmaking procedures and not necessarily by formal alteration of the text in a referendum. Secondly, I explain how we might identify informal constitutional change, despite the lack of an easy distinction between constitutional and ordinary law. Thirdly, I describe competing accounts of the legitimacy of informal constitutional change. These are competing accounts of the conditions that must be satisfied before ordinary lawmaking procedures can legitimately be used to implement constitutional change. Those competing accounts derive, respectively, from the British and American influences on Australia's constitutional arrangements and the very different conceptions of popular sovereignty and self-government on which they are predicated.

The chapter foreshadows the coming analysis, in Chapter 3, of the Whitlam government's agenda, which was consciously constructed as a programme of informal constitutional change, and widely understood as such. That analysis, in turn, sets the scene for re-examining the 1975 crisis in terms of a conflict about what conditions Whitlam was required to satisfy before he could legitimately implement his informal constitutional agenda.

The Possibility of Informal Change

Reflecting on the Whitlam years, Geoffrey Sawer once observed that ‘[t]he boundary between law and non-law is fluid; customs, moral rules and political principles become incorporated into the law in a wide variety of ways, by both judges and legislators.’ Like the boundary between law and non-law, the boundary between constitutional law and ordinary law is similarly fluid.