Contents
- The 6 colonies
- Self-government for the colonies
- Early thoughts of federation
- Federal Council of Australasia
- Melbourne conference 1890
- First constitutional convention 1891
- The popular push for federation
- Second constitutional convention 1897–1898
- The people approve the Constitution
- Negotiations with the British
- Federation
- Ideas which shaped federation
The 6 colonies
In one sense the path to the Constitution began when Governor Arthur Phillip brought a party of soldiers, settlers and convicts to Warrane on the lands of the Gadigal people of the Eora Nation, which he called Sydney Cove, New South Wales, and on 26 January 1788 established a colony in the name of King George III of Great Britain. However, for tens of thousands of years before that date, Australia’s Indigenous peoples had occupied the land. They had developed subtle and elaborate laws and systems of organisation to regulate their communities – a fact which was recognised by the landmark High Court decision of Mabo (No 2) (1992) (see chapter 10).
But from 1788 the British Crown acquired sovereignty over New South Wales. Therefore, English common law and some statute law applied in the colony. This law and the system of government in the United Kingdom would be major influences on the Australian Constitution.
Until about 1814 the colony remained in substance an open-air prison and the government an autocracy of governors who were naval or military officers. However, pressure from an increasing population of emancipists and free settlers, and the legal questionings of some civilian officials, began the movement towards representative democracy and responsible government. In 1823 the British Parliament passed a law which provided for the establishment of both a small, appointed legislative council to advise the Governor and the Supreme Court of New South Wales.
The other major constitutional movement of the 19th century was the creation of separate colonies in Australia:
- New South Wales was broken up into 5 separate colonies:
- Tasmania, until 1856 called Van Diemen’s Land (1825)
- South Australia (1836)
- Victoria (1851), and
- Queensland (1859).
- A strip between Western Australia and South Australia was added to South Australia in 1861, a strip between Queensland and what is now the Northern Territory was added to Queensland in 1862, and what is now the Northern Territory was added to South Australia in 1863.
- This left New South Wales as we now know it.
- Western Australia was independently founded as a colony in 1829.
Self-government for the colonies
The drive towards democratic self-government in the colonies had 2 components: getting rid of rule from London and extending the basis of political authority in Australia.
The Australian Constitutions Act 1850, passed by the British Parliament, was the key measure in both the transfer of effective power to Australia and the growth of representative democracy. It gave to the legislative councils in the colonies the power to set up local parliaments and regulate elections. These parliaments, with the assent of the Governor (or, in some cases, the Queen), would have a general power to make laws for the 'peace, welfare and good government' of their colonies, including power to vary their own constitutions.
New South Wales, Victoria, South Australia and Tasmania accordingly drafted constitutions setting up bicameral (2-house) legislatures. As the New South Wales and Victorian provisions departed in some respects from the requirements of the 1850 Act, the British Parliament enacted those constitutions by separate Acts in 1855.
Tasmania and South Australia set up their schemes within the limits of the Australian Constitutions Act by local legislation which took effect in 1855 and 1856 respectively. Queensland, on its formation in 1859, acquired a bicameral legislature by order in council. Western Australia, slower to develop and preserving a convict transportation system long after those systems ceased in the other colonies, did not acquire self-government until 1889, and this was confirmed by a special British Act which took effect in 1890. The current State constitutions are set out at [4.9] and discussed in chapter 4.
Colonial Laws Validity Act
From 1855, the British Parliament passed many Acts which permitted Australian legislative action on matters of detail previously thought incidental to 'imperial policy' or which cleared up doubts on those matters. The most important of these was the Colonial Laws Validity Act 1865, which established (after doubts raised by a South Australian judge) that colonial legislation was not invalid because in a general sense it was inconsistent with 'English law', which included the common law developed by the courts and basic English statutes such as the Magna Carta. Colonial legislation would only be invalid if it were 'repugnant to' (that is, in direct conflict with) British statutes which were applicable in the colony.
In fact, fewer and fewer British statutes were made applicable in the colonies. Because of the general power to legislate for the 'peace, welfare' (or in some constitutions 'order') 'and good government' conferred on the 6 colonial legislatures, and the absence of significant checks on that power in the colonial constitutions themselves, the colonial legislatures rapidly approached the same sort of status within each colony as the British Parliament enjoyed in Britain. They became 'sovereign legislatures' with the power to make almost any law within the colony.
The move towards democracy
After 1850, the widening of the political basis of Australian government was fought out mainly in Australia. The Australian Constitutions Act itself, in the fashion of the time, specified property qualifications for voters and for members of the councils. In the new bicameral legislatures subsequently set up, there were similar requirements even for voters and members of the 'popular' or lower houses.
As a result of the gold rushes of the 1850s and subsequent economic expansion, the character of Australian society changed rapidly. A largely free population exerted great pressure for democratic reform and many of the new immigrants held radical political views. The pressure was resisted by conservatives who wished to retain a special political role for 'property' and who were strongly represented in each upper house.
These battles were fought out colony by colony, with little trans-colonial organisation. The result was a very uneven rate of political and constitutional development, although all of it was in the general direction of greater democracy. By 1900, all colonies had adopted the secret ballot, and for the lower house male suffrage at 21. In South Australia and Western Australia women could vote for the lower house. Only New South Wales and South Australia had abolished plural voting – in the other colonies, property owners could have several votes, even for the lower house. Issues, and the style of politics, also varied widely.
Factional politics and the influence of powerful individuals were still prominent everywhere, but the beginnings of more settled party organisations were apparent in New South Wales and Victoria. These developments were hastened by the growth of trade unions and of parties representing the working classes in the late 1880s and the 1890s. By 1900, every colony had acquired a vigorous local political life, expressed through institutions having an obvious resemblance to parliamentary and cabinet government as it had developed in Britain.
A class of politicians, and officials forming the beginnings of a British-type career public service, handled these institutions with confidence and vigour. As well as administering the traditional 'law and order' functions of government, they had introduced the early beginnings of welfare-state policies and were accustomed to a positive role for government in the economic development of their colonies.
Early thoughts of federation
Even while the 6 colonies were asserting their separate independence from Britain and from each other, some voices suggested that geography, common origins and culture, foreign and defence affairs, economic advantage and practical convenience required concerted action between the colonies and even a measure of formal union.
The loudest early voices were those of British ministers and officials, notably Henry George Grey, the third Earl Grey (1802–1894), who was Colonial Secretary from 1846 to 1852. His first draft of the Australian Constitutions Act included provision for a central Australian authority with limited competence.
Grey’s initiative was strongly criticised in Australia, but similar, if vaguer, suggestions were made by the Sydney and Melbourne leaders in their draft counter-suggestions. In the end, none of these proposals were contained in the 1850 Act. The colonists were intent in the first place on building representative and responsible government in the several colonies and were nearly as suspicious of possible central Australian authorities, however modestly conceived, as they were of control from London.
Parkes and Griffith
Once parliamentary government was well underway, the Australian leaders began to reconsider the case for some form of association. The best-known and most frequent advocate of Australian union through these years was Henry Parkes (1815–1896).
Born in England of humble parents, and poorly educated, Parkes migrated to Sydney in 1839 and developed marked journalistic and oratorical talents. After a period as a radical in politics, he became a leader of the centre 'liberals'. Liberals generally supported democratic reform and individual liberty and were to the 'left' of the political spectrum. In contrast, conservatives defended existing institutions, promoted individual enterprise and were to the 'right' on the political spectrum. Parkes was in the New South Wales Parliament almost continuously from 1854 until his death in 1896, often a minister and 5 times Premier. With his giant frame and great mane of white hair, he physically dominated any gathering and earned the respect of his fellow politicians. Alfred Deakin described Parkes as 'a large-brained self-educated Titan'.
Parkes was on a visit to England when, in 1883, a conference of the 6 Australian governments plus the governments of New Zealand and Fiji was held in Sydney. The dominating constitutionalist was Samuel Griffith (1845–1920), then Premier of Queensland. Griffith was the most gifted jurist and constitutional scholar to engage in the federal movement and had the greatest individual influence on the shape of the federal Constitution. Born in Wales, he migrated to New South Wales with his family in 1854. After a brilliant course at the University of Sydney, he became a barrister in Brisbane. He entered the Queensland Parliament in 1872 and held many ministerial posts.
Until 1890, Griffith was a radical liberal in politics, although, like Parkes, he was moving slowly to the right on social questions. He had always supported moves towards Australian federalism and, because of Queensland fears over German settlement in New Guinea and domestic disputes about the use of Pacific Island labour (Griffith was basically for a 'white Queensland'), he was especially conscious of the foreign policy and defence reasons for federation.
He had a cold personality but was a master of political tactics, and his powers of logical analysis commanded respect. The Great Depression and the strikes of 1890–1893 caused him to become more conservative – a trend which increased after he became Chief Justice of Queensland in 1893. However, he continued to support and influence the federal movement and was frequently consulted by both Australian and British leaders. Until 1891, Parkes and Griffith spearheaded the federal movement. Griffith became the first Chief Justice of the High Court of Australia in 1903.
Federal Council of Australasia
The main purpose of the 1883 conference was to discuss common action in the face of French and German colonisation and acquisition in the South Seas. Its main achievement was to carry a resolution favouring the formation of a Federal Council, to consist of 2 representatives from each self-governing colony and 1 from each Crown (non-self-governing) colony. The Council was to have power to deal with naval defence on the high seas, relations with the Pacific Islands (meaning really their imperial masters), the influx of criminals (this was aimed at French plans to expand a prison colony in New Caledonia), and other matters referred by the participating colonies.
Notably, the customs tariff was not mentioned, and the Council was to be given no independent financial resources or executive or judicial arms. The British Parliament provided the legal framework by enacting the Federal Council of Australasia Act 1885. Parkes, who had previously favoured a Federal Council, now withdrew his approval on the ground that a stronger union was needed. Neither New South Wales nor New Zealand joined and South Australia did not join until 1888, and then for 2 years only. However, the Council served 2 useful purposes: it provided many colonial leaders with regular opportunities for mutual discussion and the development of an inter-colonial outlook; and it demonstrated the need for a much stronger and irrevocable type of federal union if Australia was to become a nation.
Melbourne conference 1890
On 24 October 1889, Parkes, by now the 'grand old man' of politics across Australia as well as New South Wales, made a widely publicised and praised speech at Tenterfield, New South Wales, calling for a conference of Australian governments to consider the need for a true federation. His initiative led to a meeting at Melbourne in February 1890 of representatives from the 6 Australian and the New Zealand governments. They included Parkes, again Premier of New South Wales, and Griffith, now opposition leader in Queensland.
Clark
The chief Tasmanian representative was the Attorney-General of that colony, Andrew Inglis Clark (1848–1907), also a distinguished lawyer and perhaps even more deeply read in federal constitutional matters than Griffith. Certainly, he had a wider knowledge of the constitutional system of the United States. Clark was Australian-born, an engineer turned highly successful lawyer, and active in politics almost continuously from 1878 until his appointment as a Judge of the Supreme Court of Tasmania in 1898. He was an even more radical liberal than Parkes and Griffith, remained throughout his life an admirer of United States institutions, and was a pro-federalist and a republican. He was small, spare and nervous in manner and, like Griffith, an acute logician.
Deakin
The most interesting Victorian delegate was the Chief Secretary, Alfred Deakin (1856–1919). Australian-born, and a lawyer by training, Deakin was principally a journalist and politician, learning both trades from David Syme and his Age newspaper, which espoused radical liberal and protectionist causes. Deakin entered the Victorian lower house in 1879, was a minister by 1883, and in 1885 became the leader of the Victorian liberals at a time when they and the moderate conservatives had reached a working agreement.
With domestic Victorian issues in a stage of temporary settlement, Deakin was able to transfer his great abilities to the federal question. He had supported the Federal Council experiment and represented Victoria at its meetings, but his support for a stronger union reached its full force after his experiences at the first Colonial Conference in London in 1887. There he played a prominent role in trying to persuade the British government to be more active in checking French and German expansion in the Pacific. He saw that a multitude of colonial voices weakened the presentation of the Australian point of view within the British empire and in the world.
Deakin had great charm, mystical tendencies, a rich inner life and an absence of vanity or of self-regarding motives. These qualities set him apart from his great contemporaries. He was also capable of devastating judgments on his colleagues, which he expressed in private or anonymous writings. He was an excellent mixer, commonly known as 'affable Alfred' because of his ability for calming passions and persuading colleagues to agree. His unswerving advocacy of federalism and skill at negotiation made him one of the chief behind-the-scenes leaders, and he went on to a distinguished career in federal politics as a member of the first federal Parliament, as the first Attorney-General and later as Australian Prime Minister (1903–1904, 1905–1908, 1909–1910).
Cockburn and Steere
The South Australian Premier John Cockburn (1850–1929) was a medical doctor but was so well read in the fields of government and constitutional practice that even in technical legal discussions about federalism he could hold his own with most of the lawyers. He too was a radical liberal and a supporter of female suffrage. Born in Scotland, he emigrated to Australia in 1875, entered the South Australian lower house in 1884 and was either a minister or prominent in opposition until 1898, when he became agent-general in London and retired there.
The chief Western Australian delegate was James Lee Steere (1830–1903), Speaker of the new Legislative Assembly, and before that Speaker and a foundation member of the Legislative Council, which preceded the introduction of responsible government. Born in England, he emigrated to Western Australia in 1860 and was unusual among the 'federal fathers' in having been a merchant navy officer for 15 years. In Australia he was a prosperous squatter and inclined to conservatism.
Achievements
The conference produced some famous sayings, notably Parkes’s 'the crimson thread of kinship runs through us all' and the warning of James Service, a former Victorian Premier, that the 'lion in the path' was the tariff question (and, in particular, the general commitment of Victoria to protection and of New South Wales to free trade). But the substantial achievement of the meeting was a unanimous resolution, moved by Parkes, calling for 'the union of these colonies, under one legislative and executive Government, on principles just to the several colonies' and a consequential resolution that the members would procure the nomination by their legislatures of representatives to attend a convention 'to consider and report upon an adequate scheme for a federal constitution'.
First constitutional convention 1891
The first national Australian convention met in Sydney from 2 March 1891, with 7 representatives from each Australian colony and 3 from New Zealand. It was apparent that the New Zealanders had no intention of joining with Australia, although they kept a sympathetic eye on the federating process. The Australian representatives included the 6 premiers (of whom Griffith was again one); Deakin and Cockburn, now in opposition, were again prominent among the Victorians and South Australians respectively; Clark was there as Tasmanian Attorney-General; and Steere, still Speaker, was among the Western Australians.
Barton
Three newcomers played a considerable role immediately and an even greater one later. Edmund Barton (1849–1920) was from New South Wales – Sydney-born, a graduate of the University of Sydney, a leading barrister and a member of one or other house of Parliament for most of the time between 1879 and 1901. He not only entered the first federal Parliament but also became the first Australian Prime Minister. In 1903 he became a foundation Justice of the High Court of Australia.
In politics Barton was not a strong party man, his position being that of a moderate liberal, and for a long while he had a reputation for indolence. But he had a talent for rising to an occasion, and after the 1891 convention kindled his enthusiasm he strove with energy, determination and success to achieve Australian federation.
From 1892 on, as president of the Australian Federation League, he fought tirelessly for the adoption of the 1891 draft Constitution, became the leader of the 1897–1898 federal convention and was the chief Australian spokesman in negotiations with the British government. He was not an outstanding orator, but he did coin the slogan 'a nation for a continent, and a continent for a nation'. He had a talent for persuasion and compromise but with it more drive and readiness to cut discussion short than Deakin possessed.
Kingston and Downer
Charles Kingston (1850–1908), born in Adelaide, was also a prominent lawyer with a special talent for drafting. He entered the South Australian lower house in 1881. He was soon a minister or prominent in opposition and ultimately Premier from 1893 to 1899. He too entered the first federal Parliament. He was a very radical liberal.
John Downer (1843–1915) was born in Adelaide, became a leading barrister and entered the House of Assembly in 1878. He rose to leadership of the conservatives, was twice Premier and became a senator in 1901. He was strongly pro-federal.
Hackett
Also prominent in debates was a Western Australian moderate liberal, John Hackett (1848– 1916), who was born in Ireland and was a graduate of Trinity College, Dublin. After a varied career in the eastern colonies, including university teaching, he became Perth’s chief newspaper proprietor. He first raised the question whether federalism could be reconciled with the practice of responsible government – that is, with an executive cabinet answerable to a population-based lower house rather than to a State-based upper house.
Parkes’s general resolutions
The public and parliamentary discussions connected with the choice of the 1891 delegations had already established a fairly broad consensus about the nature of the federal arrangements which were likely to be accepted. These arrangements had to be such as, generally speaking, would preserve a substantial area of power for the colonies. This was often referred to as a preference for the 'states rights' federalism of the United States of America rather than the centralist federalism of Canada. (For convenience, the colonies will now be referred to as 'States', which they became in the federation.) Parkes, president of the convention, first moved general resolutions which adequately expressed this understanding.
In summary they called for a new federal authority with a bicameral (2 house) Parliament, the upper house consisting of equal numbers of representatives from each State and the lower house elected on a population basis. A 'responsible government' executive would be drawn from the party with a lower house majority advising a Governor-General as titular head. A federal 'supreme court' would hear all Australian appeals. The federal authorities were to be given closely defined specific powers, with an undefined residue to the States. Customs duties were to be an exclusive federal matter and interstate trade was to be 'absolutely free'. The federation was to control the armed forces.
Drafting the Constitution
Two of the delegates – Clark and Kingston – had come to the convention with entire draft constitutions in their pockets. These followed roughly the United States model, though with details from Canada and from Australian colonial provisions. Kingston’s draft was probably based on Clark’s draft, which had been circulated, although it also included some Swiss and American ideas on the use of popular referendums. Delegates also had available to them several collections of useful information about federal systems, notably one prepared by the South Australian lawyer Richard Baker, later first President of the Senate.
The debate on Parkes’s resolutions showed that the general outline they contained was acceptable, but it also brought to light sharp differences on matters of detail. The most contentious policy questions were still unresolved when the convention appointed 3 drafting committees – constitutional, finance and judiciary – which started work on 19 March. On 31 March they produced a draft Bill in a form fit for presentation to the Australian people and to the British Parliament. As Robert Garran later wrote, 'federation came down from the clouds to the earth; it changed from a dream to a tangible reality'.
The policy expressed was the product of many minds and shifting alliances, but the drafting was mainly the work of Griffith, Clark, Kingston and Barton. Barton came into it only at the last stage, when Clark fell ill. The last polishing was done during an Easter weekend cruise on the Hawkesbury River, with one unfortunate excursion out to sea, in the launch Lucinda. The final style and arrangement were due above all to Griffith. The convention debate on the draft was surprisingly short and, with only minor changes, the Bill was adopted on 9 April 1891.
The popular push for federation
Returning to their States, the delegates found that the economic depression and bank failures of 1890–1895, and their consequences in industrial strife, had prior claim on political attention. In all States, but particularly in New South Wales and Victoria, the rapid development of the Labor Party caused a concentration on social issues.
Most Labor leaders were suspicious of the federal scheme, partly because they had immediate prospects of power in the State parliaments and partly because they suspected that federalism was a middle-class enthusiasm to secure 'capitalist' aims, in which they were uninterested or which were incompatible with their own aims. The federal cause languished. However, it was kept alive by widespread popular movements, partly educational and partly propagandist. The Australian Federation League, headed by Barton and ably assisted by Robert Garran (1867–1957), has already been mentioned. Women’s suffrage organisations and the Women’s Christian Temperance Union were also very active, as was the Australian Natives Association, its most influential leader being John Quick (1852–1932).
Quick and Garran
Quick was born in England and was largely self-educated. After migrating to Victoria in 1854 he worked his way through journalism and the law, gaining eventually a doctorate in law at the University of Melbourne. He entered the Legislative Assembly in 1880 as a radical liberal and ended his career as Deputy President of the Commonwealth Court of Conciliation and Arbitration.
Garran was born in Sydney. He was educated at Sydney Grammar and the University of Sydney and practised as a barrister while heavily active in the federal cause, including as a councillor of the Australian Federation League of New South Wales. He was secretary to the drafting committee of the second constitutional convention in 1897–1898. Garran went on to write, with Quick, the first great treatise on the Constitution, which remains very influential today. He was one of the first Commonwealth public servants, as Secretary of the new Attorney-General’s Department, and became the first federal Solicitor-General. In these roles he advised the Commonwealth government on the interpretation of the Constitution, and thus he had a major impact on its practical operation.
The popular leagues held a much-publicised conference from 31 July 1893 at Corowa on the Murray River – the centre of strong pro-federalist feelings. On Quick’s motion, they unanimously resolved that the State parliaments should pass enabling Acts to provide for the popular election of delegates to a federating constitutional convention, whose work in turn should be submitted for acceptance or rejection to the people.
Premiers’ conference 1895
The program was taken up by George Reid when he became Premier of New South Wales in 1894, and Reid secured its adoption at the premiers’ conference held in Hobart in early 1895, with a valuable addendum: the Constitution so drafted was to be submitted to the State parliaments for comment and then reconsidered by the convention before submission to the electors. Queensland and Western Australia failed to act. But New South Wales, Victoria, South Australia and Tasmania passed enabling Acts accordingly and decided to press ahead.
Second constitutional convention 1897–1898
The second national Australian convention began on 22 March 1897 in Adelaide. Western Australia acted in time to send the 10 delegates allowed to each State, but in its case, as in 1891, they were chosen by Parliament. Queensland did not participate at any stage of this convention, although Griffith, now Chief Justice of the Queensland Supreme Court, was privately consulted.
The other 4 States each elected their 10 delegates, nearly all of whom were members of Parliament. The delegations included leading figures from the governments and oppositions, and from both houses. Barton, Deakin, Kingston, Downer, Cockburn, Steere and Hackett were again present. Among the new members, the following were especially influential: from New South Wales, George Reid and Richard O’Connor; from Victoria, Quick, Isaac Isaacs, Henry Higgins and William Trenwith, the only representative of the emerging labour movement; and from Tasmania, Edward Braddon. Catherine Spence stood as a candidate in South Australia, the only State which allowed women to vote and sit in Parliament, but she was unsuccessful. Indigenous Australians also were unrepresented at the convention.
Reid
Reid (1845–1918) was born in Scotland, emigrated to Australia in 1852, settled in Sydney and qualified for the bar working as a government clerk. He was soon a leading barrister and in 1880 entered the Legislative Assembly. He was Premier of New South Wales from 1894 to 1899, transferred to the federal Parliament in 1901 and became Australian Prime Minister in 1904. In 1909 he became the first Australian High Commissioner in London and was later elected to the British House of Commons.
Reid concealed behind a large physique and rollicking, often clownish, behaviour the substance of an astute and strong-willed political leader. Enough of a radical on constitutional questions to attract Labor support, he eventually lost that support because he believed not only in free trade (which Labor in New South Wales on the whole supported) but also in laissez faire government (that is, an absence of governmental interference in economic affairs). He played a critical role in the last stages of federal negotiations.
His followers distrusted both the political shape of the proposed federation – in particular, the power of the smaller States to be exercised through the Senate – and its possibly protection-dominated fiscal policy. On the other hand, they appreciated the foreign policy, defence and common-market advantages of federalism. This ambivalence was reflected in the leader of the senior colony and earned him the nickname 'Yes–No' Reid.
O’Connor, Isaacs and Higgins
O’Connor, Isaacs and Higgins were all eminent barristers – Isaacs the most learned; Higgins the most original-minded. O’Connor (1851–1912) was born in Sydney, graduated from its university and entered the Legislative Council of New South Wales in 1887. In 1901 he became a foundation senator. He was a close personal and political friend of Edmund Barton and his faithful aide in the federal movement. With Barton, he became one of the foundation justices of the High Court in 1903 and later concurrently first President of the Commonwealth Court of Conciliation and Arbitration.
Isaacs (1855–1948) was born in Melbourne, graduated at its university and entered the Legislative Assembly in 1892 as a radical liberal protectionist. He soon rose to ministerial rank, transferred to federal politics in 1901 and became Attorney-General under Deakin in 1905. He was appointed to the High Court in 1906 and became Chief Justice in 1930. Isaacs was the first Australian to be Governor-General of the Commonwealth (1931–1936).
Higgins (1851–1929) was born in Ireland, emigrated to Melbourne in 1870 and graduated from its university. He entered the Legislative Assembly in 1894 and was an even more radical liberal than Isaacs. He entered the federal House of Representatives in 1901 and became Attorney-General in 1904, in the short-lived Watson Labor government, though he did not join that party. Higgins was also appointed to the High Court of Australia in 1906. He became the second and most famous President of the Commonwealth Court of Conciliation and Arbitration.
In view of their legal eminence, and the absence of Griffith and Clark, one would have expected Isaacs and Higgins to play a more influential part in policy making and drafting. Isaacs, however, annoyed his colleagues (particularly Barton, the convention leader) by his pedantic excess of erudition, while Higgins’ effectiveness was reduced by the excesses of his political attitudes – he demanded either centralisation or no federation at all (and later advocated for the defeat of the federation Bill at the referendum).
Trenwith and Braddon
Trenwith (1846–1925) did not make major contributions to debate or drafting but was influential because he was the sole direct representative of the growing labour movement. Born in Launceston, he worked as a bootmaker and became a trade union and Labor Party leader in Victoria and South Australia. He entered the Victorian Legislative Assembly in 1889, held ministerial office and became a senator in 1903. He was a more temperate critic of the federal proposals than Higgins and advocated adoption of the best terms available.
Braddon (1829–1904) was born in England. He worked in the Indian civil service and fought in the mutiny and then emigrated to Tasmania in 1878. He almost at once entered the House of Assembly, rose to leadership on the conservative side and was Premier from 1894 to 1899. He was elected to the House of Representatives in 1901. He was strongly federalist but was also, like Reid, a socially conservative free trader and defender of states rights.
Further drafting
The 1897–1898 convention members regarded themselves as making a fresh start, but in practice they took the 1891 draft as their chief guide. Kingston was president and Barton moved a series of general resolutions closely resembling the Parkes resolutions of 1891 (see [2.42]). The debate exposed much the same divisions as in 1891. On the adjournment of the convention on 31 March, committees were appointed to handle the constitution, finance and the judiciary. In a departure from 1891, the whole membership of the convention was distributed among these committees.
The constitutional committee became in effect a smaller replica of the full convention and able by its voting to settle many matters. The committee appointed Barton, O’Connor and Downer as a drafting committee, and Garran, as secretary to Barton, played a prominent part in the drafting work.
The committees reported by 8 April. On 12 April, Barton presented a draft that gave the Commonwealth a few more powers than did the 1891 draft. It was more democratic but in other respects somewhat more states rightist and conservative. The convention adjourned on 23 April to enable the Bill to be considered by the parliaments of the 5 participating States. Their debates produced 286 proposed amendments. On 2 September 1897 the convention resumed sitting in Sydney to consider the State suggestions and – less officially – comments transmitted through Reid by the British Colonial Office and through the drafting committee by Griffith and Clark.
They adjourned again on 24 September and resumed in Melbourne on 20 January 1898 for the final marathon session, which ended on 17 March. A federation Bill was then adopted and sent off, as agreed, for popular acceptance.
The people approve the Constitution
Referendums to approve the federation Bill were held in Victoria, South Australia and Tasmania in June 1898, and the required majorities were easily achieved. In New South Wales, however, the majority was small and 8,405 short of the affirmative vote of 80,000 required by the enabling Act. Reid then procured a premiers’ conference, held in Melbourne in January and February 1899 and attended by all 6 premiers, to discuss the resulting stalemate.
Some of the demands of the opposition in New South Wales were met. In particular, the majority required to pass a Bill in a joint sitting of both houses of Parliament after a double dissolution was reduced from two-thirds to an absolute majority (see section 57, discussed at [6.91]–[6.94]), a proposal to amend the Constitution could be submitted directly to voters by one house of Parliament only (see section 128, discussed at [11.1]), and the new federal capital would be located in New South Wales (see section 125). The draft Bill was amended accordingly. Fresh referendums were held in New South Wales, Victoria, South Australia and Tasmania from April to July 1899. Not only sufficient but also increased affirmative majorities were obtained in them all.
This still left Queensland and Western Australia. Queensland finally passed an enabling Act, and a referendum in September 1899 produced a narrow but sufficient majority in favour. Western Australia still demanded concessions. It was not until June 1900 that the Western Australian Parliament passed its enabling Act, and on 31 July its voters approved the necessary referendum.
Only in South Australia and Western Australia were women entitled to vote, and only in South Australia did some Indigenous Australians vote. Enrolment and voting was voluntary in all the colonies and the turnout of eligible voters was relatively low by modern standards. While noting this, the approval of the federation Bill by referendums was for its time a remarkably inclusive and democratic process. This level of popular participation was ultimately to have significant implications for Australia’s political system. The contemporary notion that Australia is a society in which sovereignty resides with the people is based to a significant extent on the people’s endorsement of the federation Bill.
Negotiations with the British
The British government indicated its willingness to negotiate the enactment of the draft federation Bill, even without any commitment from Western Australia, so an Australian delegation arrived in London in March 1900. The delegates were Barton (New South Wales), Deakin (Victoria), James Dickson (Queensland Premier), Kingston (South Australia) and Philip Fysh (Tasmanian Premier). Western Australia sent an observer, Stephen Parker.
The Colonial Secretary, Joseph Chamberlain, began by asking for a number of changes to the Bill but, in the end, settled for an amendment of the provision concerning appeals from Australian courts to the Privy Council in the United Kingdom (section 74).The draft had provided that generally there could be no appeal to the Privy Council in any matter involving the interpretation of the Constitution or of the Constitution of a State and allowed the Parliament to make laws about other appeals. The amendment provided that there could be no appeals as to the limits inter se (that is, between) the powers of the Commonwealth and the States except where the High Court certified that the question was one which ought to be determined by the Privy Council. This made the Australian High Court the final appeal tribunal in respect of the most important classes of constitutional cases and left to the Australian Parliament the possibility of further restricting appeals by future legislation. We return to this issue in chapter 8 (see [8.42]–[8.44]).
Federation
The Commonwealth of Australia Constitution Bill 1900 was introduced into the House of Commons on 14 May 1900, was finally passed by the British Parliament on 5 July, and received Queen Victoria’s assent on 9 July. The Queen was able to proclaim that on 1 January 1901 the Australian Commonwealth would come into existence, with all 6 Australian colonies as original States of the federation. View the Proclamation.
Ideas which shaped federation
There are a number of issues which today are of considerable significance but which received relatively little attention from the convention delegates.
Rights
First, as we shall see in chapter 9, the delegates were not greatly concerned with the relationship between government and the Australian people. Their principal concern was with the division of political power between the Commonwealth and the States. Consequently, unlike the United States Constitution, there is no express bill of rights in the Constitution limiting the powers of either the Commonwealth or State parliaments. The absence of a bill of rights reflected a view on the part of most delegates that individual rights and freedoms were best protected by democratically elected parliaments and the common law.
Indigenous Australians
Another striking feature from a modern perspective is that Indigenous Australians were unrepresented at the conventions and virtually no time in the convention debates was spent discussing the position of Indigenous Australians. The Constitution, when enacted, contained only 2 references to Indigenous Australians (section 51(xxvi) and section 127). Both these references were dismissive, and both were removed from the Constitution in the referendum of 1967. We return to this issue in chapter 10.
Main divisions
WHY WAS THIS EXCLUDED?
The main political divisions at the conventions were between:
- liberals, who supported democratic reform and individual liberty and were to the left of the political spectrum; and conservatives, who defended existing institutions, promoted individual enterprise and were to the right of the political spectrum
- protectionists, who supported tariffs and other measures to prevent cheap imports and benefit local producers, and free traders
- states-righters, who wanted powerful State governments and a weak Commonwealth government; and centralists, who wanted the reverse
- small-staters and big-staters, in particular, those from New South Wales and Victoria.
However, this generalisation requires 2 qualifications. First, to an important degree an overwhelming majority of the delegates at all stages were states-righters. It was federation they aimed at – a federation in which there was a strong emphasis on preserving the structure and powers if the States, with union for specific and limited purposes. Few consistently advocated outright unification. Most centralists wanted only federalism with a relatively strong centre.
Secondly, there was no invariable correlation between the attitudes mentioned. There were liberal states-righters and conservative states-righters, liberal centralists and conservative centralists, liberal small-staters and conservative small-staters, and so on. There was a strong tendency for conservatives from small states to be also states-righters, but the correlations of liberalism were very varied.
Of the 17 leading figures we have specifically mentioned, 10 were liberals inclining to the radical side, 4 were moderate liberals inclining to the right, and only 3 were definitely conservative. As mentioned earlier, there was only one direct representative of the growing labour movement. Seventy-nine individuals took part in the 1890 conference and the 1891 and 1897–1898 conventions, and in this larger group the political centre of gravity was more to the right than it was among the leaders. However, despite their mutual recriminations, the political distances between most of the delegates were not great, and through the late 1880s and the 1890s a majority of them had found it necessary to form alliances with former enemies.
Had the Constitution been written when there were more organised political parties it may well have been quite a different document. Further, while those political divisions which existed at the conventions are reflected in a range of provisions in the Constitution, significant new political issues and divisions have arisen after then. Many of the constitutional developments since federation which we consider in this book focus on how these new political issues and divisions have been addressed within the constitutional framework developed in the 1890s.
The Parkes resolutions of 1891 (set out at [2.42]) had outlined fairly the general structure of the federation to come. From a modern perspective most of the disputes which raged until 1900 about the proposed Constitution appear to have been either over short-term political questions or premised on false expectations The issues with the most long-lasting implications were as follows.
Senate
The first issue involved the structure and powers of the Senate. States-righters and small-staters wanted the Senate to represent the States equally and to have equal powers with the House of Representatives, whose membership was proportionate to population, and conservatives inclined this way. Centralists and 'big-staters' wanted either a Senate in some degree proportioned to population or a Senate with merely 'revisory' powers, or both, and liberals inclined this way. This was a dispute which the states-righters and small-staters won. But the dispute wrongly assumed that the Senate would usually vote on State rather than party lines. We return to this issue in chapter 6.
Finance
All the States depended heavily on customs revenue, which it was agreed must become a federal monopoly because of the need to establish a common market throughout Australia. All wished the States to get some recompense for losing this revenue.
But free traders, who were especially powerful in New South Wales, did not want a situation in which the federation would be bound to have relatively high tariffs, in order to raise enough money for itself and the States. States-righters and small-staters wanted a guarantee of enough money for the States, whatever the cost in higher customs duties. We return to this issue in chapter 4.
Amending the Constitution
States-righters and small-staters wanted it to be difficult to amend the Constitution and to involve State parliaments or conventions. Liberals and big-staters wanted it to be easier and to involve popular referendums. We return to this issue in chapter 11, where we note that, contrary to these expectations, amendment by popular referendum has generally been difficult to achieve.
When the social turbulence and emerging nationalism of the 1890s is considered, it is surprising that the federal scheme did not go further in a centralising direction. On the other hand, when one considers the many 'lions in the path' towards federation, it is surprising that it was not postponed for at least another decade.
