Chapter 27 [A Short History of Australia, by Ernest Scott]

[Editor: This is a chapter from A Short History of Australia (6th edition, 1936) by Ernest Scott (1867-1939).]

Chapter XXVII

The Constitution

Responsible government and federation — The task of the Convention — Types of federal government — The Senate — The House of Representatives — Provision against deadlocks — The High Court — The Governor-General — Federal powers — The name ‘Commonwealth’ — New South Wales and the constitution — G. H. Reid’s attitude — Referendums — Conference of premiers — The Bill before the Imperial Parliament — The Commonwealth proclaimed — First Parliament opened.

The task of the Convention was made easier by having the draft of 1891 as a model; and a comparison between the Constitution which it prepared and its predecessor shows both general resemblance and striking differences. Substantially the framework of the new edifice followed the lines laid down six years before. The departures lay in the widening of scope and the liberalizing of powers.

The main problem was to engraft a federal system upon responsible government after the familiar British pattern; which looks easy now that it has been done, but which appeared to be so exceedingly difficult to those who first attempted it that one who sat in both Conventions considered that ‘either responsible government would kill federation or federation would kill responsible government.’ The Commonwealth of Australia has not been impaled on either horn of the dilemma, but has successfully worked a system of federal government quite novel in design. Very learned men were engaged in this work of constitution building, and the student who examines the reports of the debates will see that every example of federation known to history had been studied by them. One distinguished man, a little hastily perhaps, or because it sounded well, said, in urging that exclusively British forms of government were best adapted to Australian conditions, ‘As I do not wish my boots to be made in Germany, so I do not want my constitution to be made in Switzerland.’ Quickly came the retort: ‘I want my boots made where I find they fit me best.’ The whole course of human experience was available, and the framers of the Constitution were ready to learn from every source. But certainly they did wish to retain the mode of constitutional government which the Australian people understood, if it would work under a true federal scheme.

Australia consisted of six separate States, each endowed with complete self-government under the Crown. Not one of them need give up a shred of its independence unless it chose to do so. But in order that there might be a federation at all, these six independent States had to agree to surrender certain of their powers to the new supreme government which it was proposed to establish. When the Dominion of Canada was formed in 1867, the provincial Governments were made subordinate to the new central Government. The provincial Governors in Canada under the Dominion Constitution are appointed by the Dominion Government; and if the provincial Parliaments pass laws of which the Dominion Government disapproves, it can disallow them.

But the Australian States, in their pride of independence, were not content to agree to a union on those lines. Instead of creating a central, supreme Government, which should take the powers it needed and leave the remainder to the States, they desired to grant to the Federal Government the powers which they chose to surrender, to define them in strict terms, and to retain the remainder in their own hands. They would be the granters of powers, not the recipients of such powers as the central Government did not desire to exercise.

The United States form of Federation was more to the taste of the Convention than the Canadian form. There the central Government exercises certain defined powers and cannot go beyond them. If it does, its action is illegal, and will be declared to be so by the Supreme Court of the United States. A constitution somewhat after that pattern was what Australia required, except for one very important difference.

In the United States there is not what is known as responsible government; and Australia wanted that also. The members of the President’s Cabinet do not sit in Congress. They are responsible to him. Congress makes the laws, and the Executive — the President and his ministers — enforce them. But if Congress is not satisfied with the way the ministers do their work, it cannot turn them out. It can grumble, but cannot interfere. They are independent of parliamentary control. Australia wanted to have a federal Parliament in which ministers would sit, where they could be criticized face to face, where questions could be put to them, where they could be turned out of office if their policy or their administration did not satisfy the majority. So that, briefly stated, Australia wanted a form of government like that of the United States as far as regarded the strict limitation of its powers, but like the British system in respect to the responsibility of ministers to Parliament.

The Constitution was therefore made to provide that no minister shall hold office for longer than three months unless he be a member of Parliament. If a Government wishes to appoint a certain man as a minister, he must obtain a seat in Parliament. If no constituency will elect him, he cannot remain a minister.

In order to protect the rights of the States, the constitution set up a house of legislature called the Senate, to consist of six members from each State. This gave to Tasmania, with its small population, exactly the same representation in the Senate as New South Wales, with its comparatively large population, and might in that regard seem to be unfair. But the idea was to enable the less populous States to safeguard their interests if they should ever come into conflict with those of the more thickly populated States. It was considered that if there were only one house of legislature, elected on the principle of one member to a given number of electors, the smaller States would be in danger of being swamped. If, for example, an issue particularly affecting Tasmania were in question, and on a population basis she had only five representatives, whilst New South Wales had twenty-seven, she might, it was feared, suffer an injustice. But that would not be likely to occur if in the Senate all the States were on an equality. The Senate therefore was not an ‘upper house,’ like the House of Lords, or a House of nominated members, or of members elected on a restricted franchise like a Legislative Council, but was a States House.

The second legislative chamber which the Constitution established was called the House of Representatives, and was to consist of members chosen directly by the people on the basis of electoral equality — each elector in each State having the same voting power as his fellow, and no more. There were to be at least twice as many representatives as there were senators, and each State was to be allotted so many, according to population. No elector was to have more than one vote.

In the section defining the right of electors there were words which ensured that no elector who had acquired the right to vote in a State ‘shall be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.’ Those words were inserted because in South Australia women were enfranchised, and the members of the Convention from that State desired to ensure that the right to vote should not be taken away from them under the federal Constitution. The insertion of the words virtually ensured the extension of the franchise to women throughout Australia, because, it being obviously desirable that the franchise should be uniform, the only way of securing uniformity was to give to all women the same electoral status as was enjoyed by those in South Australia.

Experience of disagreements between two legislative houses had been so unpleasant in Australia, that the framers of the constitution inserted special provisions to remove deadlocks. They also provided for setting up a High Court, invested not only with jurisdiction to hear appeals from state courts, but also to act as the sole interpreter of the Constitution. If a federal law was alleged to impinge upon the powers of the States, or if a state law interfered in a matter which was within the federal scope, the High Court alone was to have authority to prevent the encroachment.

Surmounting the federal edifice was placed a Governor-General, appointed by the Crown.

Stated in summary form, the federal structure consisted of (a) a House of Representatives, elected on a wide franchise, one elector exercising one vote and no more; (b) a Senate in which the States had equality of representation; (c) the Executive, consisting necessarily of members of Parliament; (d) the High Court, the sole authorized interpreter of the Constitution; (e) the Governor-General, representing the Sovereign.

The powers entrusted to the Federal Government were defined in thirty-seven paragraphs of section 52 of the Constitution. Their range was great, covering defence, posts and telegraphs, navigation, customs and excise, trade and commerce with other countries and among the States, currency, census and statistics, marriage and divorce, banking, insurance, weights and measures, immigration and emigration, copyright, fisheries, quarantine, naturalization, external affairs and treaties, the relations of the Commonwealth with the islands of the Pacific, conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. On all these highly important subjects, and some others of lesser consequence, the Commonwealth had power to legislate, and whenever it exercised that power its laws were to override state laws. Thus, if the Commonwealth passed a new marriage law, all state marriage laws would at once cease to have validity.

The word ‘Commonwealth’ was first suggested as a name for the union of the Australian States by Henry Parkes, in the constitutional committee of the 1891 Convention — though that fact is not disclosed by the reported debates. When the suggestion was made it was rejected; but the name was afterwards formally proposed by Alfred Deakin, one of the Victorian delegates, and carried in the committee by the very narrow majority of one. When the matter came before the full Convention in the text of the draft bill, strong exception was taken to it. To some the word recalled the grim iconoclasts of the Cromwellian revolution — ‘take away that bauble’ — ‘paint me warts and all’ — Ironsides and cropped polls — and such upsettings as made nervous politicians blink! But the more it was thought about the better it sounded; especially after the scholarly eloquence of Edmund Barton had shown what a classic English word it was. Then the Convention adopted it by twenty-six votes to thirteen. When the 1897-8 Convention was called together, the name had so much taken possession of the popular mind that none other would do. Only one member took exception to it then, but he could find no support for his objection. ‘Commonwealth,’ said Barton, ‘is the grandest and most stately name by which a great association of self-governing people can be characterized’; and it remained in the title as ‘an act to constitute the Commonwealth of Australia.’

The history of the Constitution between the time when it left the hands of its framers in March 1898 and its enactment as a statute of the Imperial Parliament in July 1900 is full of interest. This, indeed, was the critical period of Australian federal history. Into those twenty-eight months were crowded many strange political adventures and a whirl of excitement, including some acrobatic feats.

The procedure laid down in the Enabling Acts which had been passed by the States, and under which the Convention had done its work, was that after the Constitution had been drafted it should be submitted to the people, and that it must, to ensure acceptance, receive a minimum number of affirmative votes in each State. The minimum required in New South Wales was 50,000. But after the Convention had prepared the bill, a professed enemy of federation in the New South Wales Parliament introduced a bill to make the minimum 120,000. It was well known that such a number of affirmative votes could not be recorded. The clear intention was to prevent the Constitution becoming law. Reid, the Premier, objected to the 120,000 minimum, but himself suggested raising it to 80,000; a figure which was sufficient to make the fate of the measure insecure.

Reid’s object was to bring about a reconsideration of the bill in several important particulars. He disliked the financial clauses, and he especially objected to the clause which provided that ‘the seat of government shall be determined by the Parliament.’ A large body of opinion in Sydney felt that the capital of the Commonwealth ought to be in New South Wales. That was the oldest State of the group, and was also the wealthiest and most populous. Reid was not only impressed by this argument, which was very vociferously urged in Sydney, but was also so trenchant in his criticism of other provisions that nearly the whole of the first public speech in which he uttered them was a sustained argument for the rejection of the Constitution by the people of New South Wales. Much to the surprise of those who heard it, however, he concluded by saying that, notwithstanding all the defects he had pointed out, and though he could not take up the bill with enthusiasm, still he could not ‘become a deserter from the cause,’ and regarded it as his duty to Australia to record his vote in favour of it.

Reid’s attitude bewildered many and angered more. It led the Sydney Bulletin to define it as a ‘Yes-No’ attitude — a term which figured largely in the controversy of the period, and found its way into the dictionary. But all leading politicians have to get accustomed to nicknames and tags. They are rarely so injurious as those who invent them suppose them to be. It is always dangerous for a political leader to make distinctions which appear to be subtle, but Reid’s difficulty can be appreciated by those who survey the situation in a calmer mood than the fierce party frenzy of the day allowed. He conceived that he had a divided duty: to the Convention of which he had been a member and the bill which was its work, on the one hand, and to the assertive body of public opinion in the State of which he was the Premier, on the other. But his adverse criticism made it impossible to secure the requisite 80,000 affirmative votes, and though there was a majority for federation on the terms of the bill in New South Wales — there were 71,595 votes for and 66,228 against it — the cause of union was for the time thwarted. In Victoria, South Australia, and Tasmania there were overwhelmingly large favourable majorities. In Western Australia the obligation to submit the bill to a referendum had not been assumed by the Government.

It would have been legally possible for the three States which had adopted the Constitution to federate under it by the process of petitioning the Crown to submit it to the Imperial Parliament. But federation without New South Wales would have been absurd, and the three Governments felt that a patient policy was the better one. The question was: What amendments would satisfy Reid and his Sydney supporters? Their attitude was defined late in 1898. The Victorian Premier, George Turner, thereupon summoned a conference of State Premiers to meet in Melbourne, when, to the satisfaction of all Australia, it was joined by the Queensland Premier, J. R. Dickson, whose presence was a guarantee that the sixth State of the group was now prepared to co-operate. Five amendments were prepared by this conference. Three were financial, a fourth related to the power of the Federal Parliament to alter the boundaries of States, and the fifth was the alteration which was designed to placate the local feelings of Reid’s Sydney supporters. Instead of leaving to the Federal Parliament unrestricted power to determine where the capital of the Commonwealth should be, it provided that, while the Parliament should sit in Melbourne, and the seat of government should be there pending the building of a federal capital, the permanent home of the Commonwealth Government should be within territory to be ‘granted to or acquired by the Commonwealth,’ but must be ‘in the State of New South Wales, and be distant not less than one hundred miles from Sydney.’

These amendments made all the difference between success and failure. At a second referendum, held in June 1899, there were 107,420 affirmative and 82,741 negative votes in New South Wales. A comparison between the voting in 1898 and 1899 is instructive. It shows an increase of federal feeling in all the States in which there were referendum polls in both years. Queensland did not vote in 1898, and Western Australia, whose Government was angling for special financial terms, did not join the federation till after the bill had been passed by the Imperial Parliament. The comparison is shown by the following table:

New South Wales:
1898 referendum71,59566,2285,367
1899 "107,42082,74124,679
1898 referendum100,52022,09978,421
1899 "152,6539,805142,848
South Australia:
1898 referendum35,80017,32018,480
1899 "65,90017,95348,937
1898 referendum11,7972,7169,081
1899 "13,43779112,646
1899 referendum38,48830,9967,492
Western Australia:
1899 referendum44,80019,69125,109

The attitude of Western Australia was different from that of any other State. The gold discoveries had attracted thither thousands of men from other parts of Australia. They were called ‘T’othersiders’ by the old colonists, who, if not opponents of federation on any terms, demanded that certain amendments should be made in the Constitution. The chief amendments they wanted were a guarantee that the Federal Government, when established, would construct a transcontinental railway connecting Western Australia with the eastern States, and permission for Western Australia to impose her own customs and excise duties for a period of five years after a federal tariff was brought into force.

But the gold-fields population were federationists almost to a man. They had certain grievances against the Western Australian Government, which had refused to grant them franchise rights on an equality with the inhabitants of the rest of the State. When they demanded that the whole of the people of Western Australia should be given an opportunity of expressing an opinion on the federation issue by means of a referendum, their petition was rejected by both houses of the Parliament. The gold-fields people then determined, ‘as all other constitutional means have been tried and failed,’ to petition the Queen for the separation of the gold-fields from the rest of Western Australia, to establish a separate government there, and thus to enable the new State so created to become part of the Australian Commonwealth.

In view of the strength of this separation movement, the Secretary of State for the Colonies, Chamberlain, telegraphed to the Governor of Western Australia urging that his ministers should ‘take into consideration the fact of the agitation by the federal party, especially on the gold-fields,’ and intimating that it appeared to him to be ‘of the utmost importance to the future of Western Australia to join at once.’ This was a clear hint to the Western Australian Government that if they continued to stand aloof, the petition from the gold-fields might be acted upon by the Imperial Government. Sir John Forrest and his ministers thereupon came to the conclusion that the risk of separation was too high a price to pay for continued opposition to the demand for joining the Federation. They therefore took steps to enable the people of Western Australia to express their opinion, with the result that, as recorded above, the large majority of 25,109 out of 44,800 voted in favour of the acceptance of the Commonwealth Bill.

The Commonwealth Bill having thus been accepted by the people of Australia, it was necessary for it to be passed by the Imperial Parliament. But now again difficulties arose. The bill, in conferring upon the High Court exclusive jurisdiction in cases involving the interpretation of the Constitution, also gave power to the Federal Parliament to make laws limiting the matters of law in which appeals might be made to the Privy Council, the highest court of appeal in the Empire. The English law officers objected to this limiting power being conferred upon the Parliament. That the High Court should (unless it chose to give special leave to appeal to the Privy Council) be the sole interpreter of the Constitution, and of the limits of the powers of the Commonwealth and of the States, was conceded. But objection was made to restricting the right of citizens to appeal to the highest Imperial tribunal on several grounds, two of which were of broad significance — first, that the Privy Council was a bond between various parts of the Empire which it should be the aim of Imperial policy to strengthen rather than to weaken; and, secondly, that the Privy Council ensured uniformity in the interpretation of the law throughout the Empire on matters of commercial and Imperial concern.

The Imperial Government did not think that so sweeping a change should be made unless they were satisfied that the demand for it was one ‘that has behind it the whole force of Australian opinion.’ Their inquiries had not satisfied them that such was the case.

The Secretary of State, Chamberlain, made it clear, however, that even though he and his Government felt strongly that an amendment ought to be made in this particular, they would not attempt to withstand a genuine Australian demand. Delegates had been sent to England to represent the Australian States in watching the handling of the Constitution by the British Government and Parliament, and four of them, Barton (New South Wales), Deakin (Victoria), Kingston (South Australia), and Fysh (Tasmania), made a very determined fight for the bill in an unaltered shape. Dickson (Queensland) was not so decisive. ‘The delegates submit,’ they wrote, ‘that the federating colonies are morally entitled to have the whole bill laid before Parliament in the very form in which it stood when the votes of the people, affirming it, constituted it the Australian agreement.’ They protested in a vigorous and lofty strain against having to ‘choose between the bowl of intervention and the dagger of delay.’ But the Imperial Government stood firmly by their objection, and on the reference of the points in dispute to a conference of Premiers which sat in Melbourne, those gentlemen represented that if a choice had to be made between the amendment of the bill as proposed or its postponement, they considered that the latter course ‘would be much more objectionable to Australians generally than the former.’ The appeal clause was therefore amended, and a few alterations were made in other provisions to bring the measure into harmony with the criticisms of the Imperial law officers.

In May 1900 the bill was brought before the House of Commons by Chamberlain, and was considered in a debate marked by an exalted tone of eloquent good-will. Chamberlain, a master of the art of clear exposition, gave a remarkably interesting account of the history of the federal movement, and a lucid analysis of the bill itself. He described it as ‘a monument of legislative competency.’ ‘Considering the magnitude and the variety of the interests that we are to deal with, the intricacy and importance of the subjects with which the bill has to deal, I think,’ he said, ‘that no praise can be too high for those whose moderation, patience, skill, mutual consideration and patriotism have been able to produce so great a result.’ Mr. Asquith, who spoke of it as ‘this great fabric which has been so skilfully and laboriously built,’ declared that ‘the Australian Commonwealth, the Commonwealth of the future, is a whole which we believe is destined to be greater than the sum of its component parts, and which, without draining them of any of their life, will give to them, in their corporate unity, a freedom of development, a scale of interests, a dignity of stature, which, alone and separated, they could never command.’ In July the bill passed both Houses of the Imperial Parliament, and it became an Act on the 9th of that month.

On September 17, 1900, by a proclamation issued by Queen Victoria from Balmoral, the Commonwealth of Australia was declared to come into being on and after January 1, 1901. The first Governor-General, the Earl of Hopetoun, swore in his first Cabinet, that of the federal leader, Edmund Barton, in Sydney on that date; and on May 9th of the same year the rich, far-carrying voice of the son of King Edward VII, the Duke of Cornwall and York, rang out in the great Exhibition building, Melbourne, as he formally opened the first Federal Parliament.

Ernest Scott, A Short History of Australia, London: Oxford University Press, 6th edition, 1936, pages 305-317

Editor’s notes:
The phrase “the large majority of 25,109 out of 44,800 voted in favour” might reasonably be expected to express the numerical comparison as “25,109 out of 64,491” (i.e. referring to the 25,109 majority as arising out of the total of all votes); however, in this instance, it is referring to the 25,109 majority as arising out of the 44,800 “yes” votes.

[Editor: Changed “At a second referendum, held in June 1890” to “At a second referendum, held in June 1899” (that the year mentioned, 1890, was a typographical error is shown within the same paragraph, which refers to “the voting in 1898 and 1899”.]

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