Part 37

Nearly all the precedents which the Australian Convention had at its disposal belong to very recent times, in fact to the last century and a half. Though federal governments are ancient—the oldest apparently is that formed by the cities of Lycia in the fourth century B.C.—the ancient federations scarcely got beyond the form of leagues of small republics for the purpose of common military defence. Such leagues never quite grew into Federal States, properly so called, _i.e._ States in which the central government exercises direct power over the citizens of the component communities. The same remark applies to the confederacies of the Middle Ages, such as that of the Hanse Towns and that of the old Swiss Cantons, as well as to the United Provinces of the Netherlands. The first true Federal State founded on a complete and scientific basis was the United States, which dates from 1788, when its present Constitution was substituted for the Articles of Confederation of 1776. Next came the Constitution of the Swiss Confederation, enacted in 1848, and replacing a much looser form of union which had previously joined the Cantons of Switzerland. Its present amended form dates from 1874. The third was the Constitution of Canada, established by the British North America Act of 1867. Still later came the Constitution of the North German Confederation (1866) enlarged into that of the new Germanic Empire (1871), a remarkable Federal State with a monarch for its head, and including as its members both large kingdoms, such as Bavaria and Würtemberg, and the city republics of Lübeck, Bremen, and Hamburg[208]. But this last-named Federation, instructive as it is, deals with conditions too dissimilar from those of Australia to furnish many precedents in point. It was the Constitutions of the United States and of Canada which the Australians studied most carefully, and whence they drew as well inspiration as many useful suggestions. And the student who examines the Australian scheme will find it interesting to note many points that recall, by way either of likeness or of contrast, the systems of the United States, of Switzerland, and of Canada. It is only with these three that I propose to compare the Australian Constitution in the pages that follow. As I am writing not for lawyers but for students of history and of constitutions, who desire to understand the nature of this new Government sufficiently to follow with intelligence the course of political life under it, I shall pass lightly over its more technical and more purely legal aspects, and dwell rather upon those general features which will give to the future Australian polity its character and spirit.

Footnote 208:

One might add the Constitution of the Austro-Hungarian Monarchy, which is a sort of double federation. But it is too peculiar to serve as an example to other peoples proposing to federalize.

II. THE MOVEMENT FOR FEDERATION.

Like the settlements of Britain in North America, the Australian settlements were organized as Colonies at different dates, and several of them independently of the others[209]. So, again like those of North America, each remained legally unconnected with the others, except through the allegiance they all owed to the British Crown, which sent out Governors to administer them. These officers were at first practically despotic; but when self-government was conferred upon a Colony, they became the nominal heads of an executive which in fact consisted of ministers responsible to the elective legislature of that Colony.

Footnote 209:

New South Wales in 1788, Tasmania in 1825, Western Australia in 1829, South Australia in 1836, Victoria in 1851, Queensland in 1859. Victoria and Queensland had however been originally settled (1836 and 1826), and for some time administered, from New South Wales, while Tasmania had been made a penal settlement as early as 1804.

Little as there was in the way of official connexion between the scattered settlements, their inhabitants always deemed themselves Australians, giving their sentimental attachment rather to the country as a whole than to their respective colonies. They were all English; they all lived under similar conditions: their local life had not lasted long enough to form local traditions with which sentiment could entwine itself. The very names of some of the colonies did not favour individualization, for who would call himself a New-southwalesian? And the idea that the colonies ought to be united into one political body emerged very early. As far back as 1849 a Committee in England had recommended that there should be a Governor-General for all Australia, with power to convene a General Assembly to legislate on matters of common colonial interest, and a bill introduced into Parliament in that year contained clauses for establishing such a legislature. These provisions were dropped, for the time was not ripe, yet the idea continued to occupy the minds of Australian statesmen from that year onwards; and it received a certain impulse from the creation of the Canadian Confederation in 1867. What it wanted was motive power, that is to say, a sense of actual evils or dangers to be averted, of actual benefits to be secured, by the union of the Colonies into one National State. Democratic communities, occupied by their own party controversies, are little disposed to deal with questions which are not urgent, and which hold out no definite promise either of benefit to the masses or of political gain to the leaders. However, in 1883 events occurred which evoked a new Pan-Australian feeling, and indicated objects fit to be secured by a united Australian government. The late Lord Derby, then Secretary of State for the Colonies, was the most cautious and unsentimental of mankind. He belonged to the old school of English statesmen who deprecated—and in some cases wisely deprecated—further additions to the territories and responsibilities of Britain. Disregarding the representations of the Governments of several among the Colonies, he neglected to occupy the northern part of the great neighbouring island of New Guinea which Australian opinion desired to see British, and permitted it, to their great vexation, to be taken by Germany. About the same time the escape of convicts into Australia from the French penal settlement in New Caledonia had caused annoyance, and movements were soon afterwards made by France which seemed to indicate an intention to appropriate the New Hebrides group of islands. These occurrences roused the Australians to desire an authority which might deliver their common wishes to the Home Government and take any other steps necessary for guarding their common interests. Accordingly a conference of delegates from all the Colonies, including New Zealand and Fiji, met in 1884, and prepared a scheme which was transmitted to England, and was there forthwith enacted by the Imperial Parliament under the name of The Federal Council of Australasia Act, 1885. This scheme was, however, (as I observed when it was under discussion in the House of Commons) a very scanty, fragmentary and imperfect sketch of a Federal Constitution. It had no executive power and no command of money. No colony need join unless it pleased, and each might withdraw when it pleased. Thus it befell that the plan excited little popular interest, and gave such faint promise of energetic action that only four colonies, Victoria, Queensland, Tasmania, and South Australia, entered into it; and of these South Australia presently withdrew. Meanwhile the need for some general military organization for all the Colonies began to be felt; and further objects attainable by union floated before men’s minds. With the increase of trade and industry, the vexation of tariff barriers between the colonies grew daily less tolerable. Subjects emerged on which uniformity of legislation was felt to be needful. The irrigation question, one of great importance for so arid a country, brings New South Wales, where some of the large rivers have their source, into close relation with Victoria and South Australia, and requires to be treated on common lines. These and other grounds led to an Inter-Colonial Conference of Ministers at Melbourne in 1890, and then to the summoning of a Convention of Delegates from the Parliaments of all the Colonies, including Tasmania. This latter body, which included many leading men, met at Sydney in 1891, debated the matter with great ability, and produced a Draft Bill, which became the basis of all subsequent discussions. The movement, hitherto confined to a group of political leaders, now began to be taken up by the people, and became, especially when the financial troubles of 1893 had begun to pass away, the principal subject in men’s minds. That crisis had shown all the Colonies how closely their interests were bound together, and had made them desire to remove every hindrance to an industrial and financial recovery. A Conference of Prime Ministers at Hobart in 1895 led to the passing by the several Colonial Parliaments of enabling Acts under which delegates were chosen, this time (following recent American precedents) by popular vote, to a new Convention which met at Adelaide (in South Australia) in 1897. It produced a second draft constitution, based on that of 1891, and laid it before the legislatures of the Colonies for criticism. About seventy-five amendments were proposed, and were considered by the Convention at its further sittings, which closed in March, 1898. The draft Constitution was then submitted to a popular vote, a new expedient in the British dominions, but one amply justified by the need for associating the people with the work. New South Wales alone failed to adopt it by the prescribed majority, because a large section of her inhabitants thought that her interests had not been duly regarded, but after a few amendments had been inserted at a conference of the Colonial Prime Ministers, her people ratified it upon a second vote. On this vote enormous majorities were secured in Victoria, South Australia and Tasmania, smaller ones in New South Wales and Queensland. The Constitution was then sent to England and passed into law by the Parliament of the United Kingdom under the title of The Commonwealth of Australia Constitution Act (63 & 64 Vict. cap. 12). Action by the Imperial Parliament was not only a convenient way of overriding all the colonial constitutions by one comprehensive Act, but was legally necessary, inasmuch as some provisions of the Constitution transcended the powers of all the colonial legislatures taken together. Since it had from the first been understood that the wish of the mother country was not to impose her own views but simply to carry out the wishes of the Colonies, only one slight alteration, an alteration rather of form than substance, was made in the draft as transmitted from Australia, the ill-considered notion of introducing a larger change having been eventually dropped by the British Ministry.

I have mentioned these details in order to emphasize the time, care and pains bestowed by the Australians—for the work was entirely their own—upon this latest effort of constructive statesmanship. The Constitution of the United States was framed by a Convention which sat at Philadelphia, with closed doors, for nearly five months, and was accepted by Conventions in all the thirteen States without change, though ten amendments were immediately thereafter passed by general consent, their adoption having been the price paid for the ratification of the main instrument by some doubtful States.

The Constitution of Canada took a little more than two years to settle. The Resolutions on which it was based were first of all drafted by a conference of delegates at Quebec. These were approved after full debate by the legislatures of the Provinces, and were, after some modifications, embodied in a Bill prepared by a small conference of Canadian statesmen who met in London. The Bill was then passed by the Imperial Parliament, never having been submitted to any popular vote. But this Australian instrument is the fruit of debates in two Conventions, of a minute examination by legislatures, of a subsequent revision by the second Convention, of further modifications in a few details by a conference of Prime Ministers, and has after all this preparation been sealed by the approval of the peoples of the Colonies concerned. The process of incubation lasted for nearly nine years, being all the while conducted in the full blaze of newspaper reporting and under the constant oversight of public opinion.

III. THE CAUSES WHICH BROUGHT ABOUT FEDERATION.

The reasons and grounds assigned by the advocates of Federation were more numerous than those urged in the United States in 1787-9, or in Canada in 1864-6; but none of them were so imperative, for the Australian Colonies were far less seriously menaced by actually insistent evils, due to the want of a common national Government, than was the welfare either of the American States in 1787, or of Switzerland in 1848, or of Canada in 1867. In North America, it was the growing and indeed hopeless weakness and poverty of the existing Confederation, coupled with the barriers to commercial intercourse, the confusion and depreciation of currency, and the financial demoralization of some of the States, all of which had just emerged from an exhausting war, that drew the wisest minds of the nation to Philadelphia, induced them to persist in efforts to devise a better union, and enabled them to force its acceptance upon a people largely reluctant. In Switzerland it was the War of Secession (the so-called Sonderbund war) of 1847 that compelled the victorious party to substitute a new and truly federal constitution for the league which had proved too weak. In Canada the relations of the French-speaking and English-speaking Provinces (Lower and Upper Canada) had become so awkward that constitutional government was being practically brought to a standstill, and nothing remained but that the leaders of the two parties should devise some new system. Australia was in no such straits. Her colonies might have continued to go on and prosper, as six unconnected self-governing communities. It is therefore all the more to the credit of her people that they forewent the pleasures of local independence which are so dear to vivacious democracies, perceiving that although necessity might not dictate a federal union, reason recommended it.

The grounds which were used in argument to urge the adoption of the Federal Constitution may be summed up as follows:—

The gain to trade and the general convenience to be expected from abolishing the tariffs established on the frontiers of each colony.

The need for a common system of military defence.

The advantages of a common legislation for the regulation of railways and the fixing of railway rates.

The advantages of a common control of the larger rivers for the purposes both of navigation and of irrigation.

The need for uniform legislation on a number of commercial and industrial topics.

The importance of finding an authority competent to provide for old-age pensions and for the settlement of labour disputes all over the country.

The need for uniform provisions against the entrance of coloured races (especially Chinese, Malays, and Indian coolies).

The gain to suitors from the establishment of a High Court to entertain appeals and avoid the expense and delay involved in carrying cases to the Privy Council in England.

The probability that money could be borrowed more easily on the credit of an Australian Federation than by each colony for itself.

The stimulus to be given to industry and trade by substituting one great community for six smaller ones.

The possibility of making better arrangements for the disposal of the unappropriated lands belonging to some of the colonies than could be made by those colonies for themselves.

There was in these arguments something to move every class in the community. To the commercial classes, the prospect of getting rid of custom-houses and of finding a large free market close at hand for all products was attractive; as was also that of sweeping away the vexation of railway rates planned in the interests of each colony rather than for the common benefit of trade. Large-minded men, thinkers as well as statesmen, hoped that a wider field would bring a loftier spirit into public life. The working-classes might expect, not only advantages in the way of brisker employment, but the establishment of that provision for old age and sickness which a Government covering the whole country and commanding ample resources could make more efficiently and on more uniform lines than even the richest colony could do. Some of these grounds for union measure the distance which the world has travelled since 1788. Railways are far older than was self-government in the oldest Australian colony, far younger than the youngest of the original thirteen American States. Even so late as 1867, when Canada was confederated, no one thought of suggesting that the State should provide old-age pensions.

The opponents of Australian Federation, although they came more and more to feel their cause hopeless, were an active party, including many influential men. Besides denying that the benefits just enumerated would be attained, they dwelt upon the additional cost which a new Government, superadded to the existing ones, must entail. They fanned the jealousies which naturally exist between small and large communities, telling the former that they would be overborne in voting, and the latter that they would suffer in purse; and they wound up with the usual and often legitimate appeals to local sentiment.

The arguments drawn from considerations of expense and from local jealousies were met by a series of ingenious compromises and financial devices to which both the larger and smaller colonies were persuaded to agree, while the love of each community for its own political independence was overborne by the rising tide of national sentiment. An ambition which aspired to make Australia take its place in the world as a great nation, mistress of the Southern hemisphere, had been growing for some time with the growth of a new generation born in the new home, and was powerfully roused by the vision of a Federal Government which should resemble that of the United States and warn off intruders in the Western Pacific, as the American Republic had announced by the pen of President Monroe that she would do on the North-American Continent. The same nationally self-assertive spirit and desire for expansion which has recently spurred four great European Powers into a rivalry for new colonial possessions, and which in 1899 made the United States forswear its old-established principles of policy, has been astir in the mind of the Australians. It had been stimulated by the example of a similar spirit in the mother country, and by the compliments which the English had now begun to lavish upon their colonies. It had gained strength with the growth to manhood of a generation born in Australia, and nurtured in Australian patriotism. Such a patriotism, finding no fit scope in devotion to the particular colonies, longed for a larger ideal. It supplied the motive force needed to create a national union. Without it, all the sober reasonings which counselled confederation might have failed to prevail. No equally strenuous or forward-reaching spirit moved the Canadians in 1867, nor are the traces of such a spirit conspicuous in the American debates of 1787-9. Some men were then solicitous for liberty, others for order and good government, but of imperial greatness in the present sense of the term little was said. Liberty and peace at home, not military strength and domination abroad, were the national ideals of those days.

The history of the Federation movement illustrates the truth that a great change is seldom effected in politics save by the coincidence of two moving forces—the prospect of material advantage and the power of sentiment. In every community there are many who can be moved only by one or other of these two forces, and nearly every man responds better to the first if he can be warmed by the second. In the American debates of 1788-9 feeling was mostly arrayed against the proposed federation, though reason was almost entirely for it. Reason prevailed, but prevailed with far more difficulty than the cause of Federalism, with less cogent economic grounds behind it, prevailed in Australia.

Like America in 1787, Australia was fortunate in having a group of able statesmen, most of whom were also lawyers, and so doubly qualified for the task of preparing a constitution. Their learning, their acuteness, and their mastery of constitutional principles can best be appreciated by any one who will peruse the interesting debates in the two Conventions. They used the experience of the mother country and of their predecessors in the work of federation-making, but they did so in no slavish spirit, choosing from the doctrines of England and from the rules of America, Switzerland, and Canada those which seemed best fitted to the special conditions of their own country. And like the founders of the American and Canadian Unions, they were not only guided by a clear practical sense, but were animated by a spirit of reasonable compromise, a spirit which promises well for the conduct of government under the instrument which they have framed.

IV. THE CONDITIONS FOR A FEDERAL COMMONWEALTH.

Before examining the provisions of the Constitution which is bringing the hitherto independent colonies into one political body, it is well to consider for a moment the territory and the inhabitants that are to be thus united.

The total area of Australia is nearly 3,000,000 square miles, not much less than that of Europe. Of this a comparatively small part is peopled by white men, for the interior, as well as vast tracts stretching inland from the south-western and north-western coasts, is almost rainless, and supplies, even in its better districts, nothing more than a scanty growth of shrubs. Much of it is lower than the regions towards the coast, and parts are but little above sea-level. It has been hitherto deemed incapable of supporting human settlement, and unfit even for such ranching as is practised on arid tracts in western North America and in South Africa. Modern science has brought so many unexpected things to pass, that this conclusion may prove to have been too hasty. Still no growth of population in the interior can be looked for corresponding to that which marked the development of the United States west of the Alleghanies in the beginning of the nineteenth century.