Part 39

In another point the Australian States have been treated with respect. In each of them the nominal executive head has hitherto been a Governor appointed by the British Crown. This was the case in Canada prior to 1867: but when the Canadian Federation was formed, the appointment of the Governors of the several provinces was entrusted to the Governor-General of the Dominion, that is to say, to the Dominion Cabinet by whose advice the Governor-General, being a sort of constitutional monarch, is guided. In practice, therefore, these governorships have become rewards bestowed upon leading party politicians. The Australians wisely (as most Englishmen will think) avoided this plan. Neither did they adopt the American method of letting the people of each State elect the Governor, a method unsuited to government on the Cabinet system, because, as the State Governor is under that system only a nominal head of the Executive (the Cabinet being the real Executive), there was no good reason for setting the people to choose him, and good reasons against doing so, inasmuch as popular elections are invariably fought on party lines. Accordingly the Australians have preferred to let him continue to be appointed by the Home Government, and to allow him to communicate directly with the Colonial Office in London. His Ministers are indeed described in the Constitution (sect. 44) as being ‘the Queen’s Ministers.’

VIII. DIFFERENCES FROM THE UNITED STATES AND CANADIAN FEDERATIONS.

Four other remarkable divergences, from both the American and the Canadian Federal systems, remain to be mentioned.

One relates to the judiciary. In the United States there is a complete system of Federal Courts ramifying all over the Union and exercising exclusive jurisdiction in all cases arising under Federal statutes, as well as in a number of other matters specified in Art. III. sect. 2 of the Constitution. But the State Courts remain quite independent in all State matters, and determine the interpretation of the State Constitutions and of all State statutes, nor does any appeal lie from them to the Federal Courts. In Canada this was not thought necessary, so there the same set of Courts deals with questions arising under Federal statutes and with those arising under Provincial Statutes, and the Supreme Court of Canada receives appeals from all other Courts. This is less conformable to theory than the United States plan, but does not seem to have worked ill. The danger that Courts sitting in the Provinces would, under the influence of local feeling, pervert Federal law was not serious in Canada (though a similar danger was feared in the United States in 1787), and indeed all the Canadian judges are appointed by the Dominion Government, a further illustration of the preponderance which the Nation has over the Provinces. The Australians have taken a middle course. They have established a Federal Supreme Court, to be called ‘The High Court of Australia,’ and have taken power for their Parliament to create other Federal Courts. So far, they follow the United States precedent. But they have given power to the Commonwealth Parliament to invest State Courts with federal jurisdiction, thereby allowing those Courts to be, as in Canada, both State and Federal. And they have also allowed an appeal from all State Courts to the Federal High Court. By this plan the States are more directly connected with and subordinate to the National Government than they are in the United States. The Australian scheme has one great incidental advantage. In the United States the law of different States may and does differ, not only in respect of the difference between the statutes of one and the statutes of another, but also in respect of questions of common law untouched by statutes. The Supreme Court of Massachusetts may, for instance, take a different view of what constitutes fraud at common law from that taken by the Supreme Court of Pennsylvania, and there is no Court of Appeal above both these Courts to bring their views into accord. This has not happened to any great extent in Australia, because the British Privy Council has entertained appeals from all its Courts, and it will happen still less in future, because the Federal High Court will be close at hand to settle questions on which the Courts of different States may have been in disaccord.

A second point shows how much less powerful the sentiment of State sovereignty has been in Australia than it was in the United States. By an amendment (xi) to the American Constitution made in 1798 it is expressly declared that no State can be sued by a private plaintiff. But Australia expressly grants jurisdiction in such cases to its Federal High Court (sect. 75).

A third point is the curious and novel power given to a State of referring matters to the Commonwealth Parliament, and to that Parliament of thereupon legislating on such matters (sect. 51 (xxxvii)). Under this provision (which is not to be found in the Canadian Constitution[221]) there is no department of State law wherewith the National legislature may not be rendered competent to deal. It may be usefully employed to secure uniformity of legislation over all Australia on a number of subjects not within the specifically allotted field of the Commonwealth Parliament.

Footnote 221:

But see section 94 of the Canadian Constitution.

Finally, the Commonwealth Parliament may grant financial assistance to any State, and may take over the whole or a part of its debts as existing at the establishment of the Commonwealth[222]. Provisions such as these imply, or will involve if put in practice, a relation between the National Government and the States closer than that which exists in America.

Footnote 222:

Sect. 105.

To complete this account of the relation of the Nation to the States, let it be noted that a State may surrender any part of its territory to the Commonwealth, and that the Commonwealth is bound to protect each State against invasion or, on the application of the Executive of the State, against domestic violence[223]. This latter provision is drawn from the United States constitution[224], though in America it is from the State legislature, if then in session, that the application for protection ought to come. Australia is right in her variation, because in her States the Legislature acts through the Executive. Neither provision occurs in the Constitution of Canada, which assigns military and naval defence exclusively to the Dominion Government, and makes itself responsible for the maintenance of order everywhere. In Switzerland the management of the army, in which all citizens are bound to serve, is divided between Cantons and Confederation, the supreme control remaining with the latter (Artt. 18-22). The Confederation is bound to protect a Canton against invasion and disorders, and may even itself intervene if the Executive of the Canton cannot ask it on its own motion (Artt. 16 and 17). Australia, as we have seen, allows the States to maintain a force with the consent of the Commonwealth; and this is permitted by the American Constitution also.

Footnote 223:

Sect. 119.

Footnote 224:

Art. II. sect. 3, and Art. IV. sect. 4.

IX. THE CONSTITUTION AS A FRAME OF NATIONAL GOVERNMENT.

We may now pass on to consider the National Government, the construction whereof occupies by far the greater part of the Constitution, which, while it left the States pretty much as they were, had here to build up a new system from the ground.

The first point to be examined relates to the limitations imposed on the National Government as against the citizens generally, since I have already dealt with the limitations on its powers as against the States. Here a remarkable divergence from the American Constitution is disclosed. When that instrument was enacted, the keenest suspicion and jealousy was felt of the action of the Government to be established under it. It was feared that Congress might become an illiberal oligarchy and the President a new George the Third. Accordingly great pains were taken to debar Congress from doing anything which could infringe the primordial human rights of the citizen. Some restrictions are contained in the original Constitution: others fill the first nine amendments which were passed two or three years later, as a part of the arrangements by which the acceptance of the Constitution was secured. And down till our own time every State Constitution in America has continued to contain a similar ‘Bill of Rights’ for the protection of the citizens against abuse of legislative power. The English, however, have completely forgotten these old suspicions, which, when they did exist, attached to the Crown and not to the Legislature. So when Englishmen in Canada or Australia enact new Constitutions, they take no heed of such matters, and make their legislature as like the omnipotent Parliament of Britain as they can. The Canadian Constitution leaves the Dominion Parliament unfettered save by the direction (sect. 54) that money shall not be appropriated to any purpose that has not been recommended to the House of Commons by the Executive, a direction embodying English practice, and now adopted by Australia also. And the Australian Constitution contains but one provision which recalls the old-fashioned Bill of Rights, viz. that which forbids the Commonwealth to ‘make any law for establishing any religion or for imposing any religious observance or for prohibiting the free exercise of any religion.’ The Swiss Constitution, influenced by French and American models, is in this respect more archaic, for it imposes a series of disabilities on its Legislature in the interest of individual freedom (sectt. 39, 49, 54-59). This diversity of attitude between the English on the one hand and both the Americans and the Swiss on the other is a curious instance of the way in which usage and tradition mould a nation’s mind. Parliament was for so long a time the protector of Englishmen against an arbitrary Executive that they did not form the habit of taking precautions against the abuse of the powers of the Legislature; and their struggles for a fuller freedom took the form of making Parliament a more truly popular and representative body, not that of restricting its authority.

The point just examined is one which arises in all Rigid Constitutions, whether Federal or Unitary. But the next point is one with which only Federations are concerned; and it is one in which all the great Federations agree. All have adopted the same method of providing both for the predominance of the majority of the people considered as one Nation, and for the maintenance of the rights of the States considered as distinct communities. The Americans invented this method: the Swiss, the Canadians, the Germans, and now the Australians, have imitated them. This method is to divide the Legislature into two Houses, using one to represent the whole people on the basis of numbers, and using the other to represent the several States on the basis (except in Germany) of their equality as autonomous communities. It was this device that made Federation possible in the United States, for the smaller States would not have foregone their independence in reliance upon any weaker guarantee.

X. THE LEGISLATURE.

The Australian scheme provides (sectt. 7-23) for an Upper House or Senate of thirty-six members, six from each State, and a House of Representatives (sectt. 24-40) of seventy-five members, elected on a basis of population, so that forty-nine members will come from the two large States, New South Wales and Victoria, and twenty-six from the four small States. No Original State is ever to have less than five.

The equal representation of the six Original States is always to be maintained, but the number of Senators may be increased, and when new States come to be formed, the Parliament may allot to them such number of Senators as it thinks fit. Senators sit for six years, and do not all retire at the same time. These features are taken from the Constitution of the United States, which, as already observed, has been a model for subsequent Federal Upper Houses. But there are remarkable variations in the Australian scheme.

1. In the United States each newly-created State receives as a matter of right its two Senators. In Australia the Commonwealth may allot such number as it thinks fit.

In the United States one-third of the Senate retires every two years. In Australia one-half retires every three years.

3. In the United States the President of the Senate is the Vice-President of the United States, chosen by the people[225]. In Australia, the Senate is to choose its own President.

Footnote 225:

_i.e._ practically by the people, though formally by a body of electors elected for that purpose.

4. In the United States the quorum is one more than a half of the total number; in Australia one-third of the total number.

5. In the United States the Legislatures of the several States elect the Senators. In Australia the Senators are elected by the people of the State.

This last point is one of great interest. Tocqueville, writing in 1832, attributed (erroneously, as the sequel has shown) the excellence of the American Senate to the method of election by the State Legislatures[226]. Since his days the American Senate has declined; and so far from this mode of election having tended to sustain its character, the general, though not unanimous, opinion of the wise in America deems the Senate to be injured by it, and desires a change to the method of election by direct popular vote. It was partly because the Australian Convention had become aware of this tendency of American opinion that they rejected the existing American plan; nor is it impossible that the Americans themselves may alter their system, which gives greater opportunities for intrigue and the use of money than popular election would be likely to afford. In Australia, the Senators are in the first instance to be elected by the people, each State voting as one electorate, but this may be altered (_e.g._ to a system of district elections) by the Parliament of the Commonwealth, or failing its action, by the Parliament of a State. It will be interesting to see what experiments are tried and how they work. District voting may give different results from a general State vote, and a party for the moment dominant may choose the plan that best suits it.

Footnote 226:

See as to this, Essay VI, pp. 401, 421.

6. In the United States the Senate is an undying body, perpetually renewed by fresh elections, never losing more than one-third of its members at any one time. In Australia the Senate may be dissolved in case a deadlock should arise between it and the House of Representatives.

The Senate is the sheet-anchor of the four small States. Commanding a majority in it, they have consented to acquiesce in the great preponderance which their two larger neighbours possess in the House of Representatives. The numbers of the latter House are to be always as nearly as practicable double those of the Senate, a point whose importance will presently appear.

The House is to continue for three years (subject of course to dissolution), a term intermediate, though inclining in the democratic direction, between the two years of the American Congress and the seven (practically (six) years of the British House of Commons. The Canadian term is five years. Until the Commonwealth Parliament otherwise provides, the electoral suffrage is to be (as in the United States) the suffrage prescribed by State law for the election of members of the more numerous State House, and it is expressly provided, doubtless with a view to the fact that women’s suffrage already exists in two colonies, that no law shall prevent a State voter from voting at Commonwealth elections. So far from securing, as does the United States Constitution, that no person shall be excluded on the ground of race from the suffrage[227], Australia has expressly provided that persons belonging to a particular race may be excluded, for she declares (sect. 25) that in such case the excluded race is not to be reckoned among the population of the State for the purposes of an allotment of representatives. Plural voting is forbidden. The quorum of members is a mean between the inconveniently large quorum (one-half) of the American, and the very small one (forty) of the British House. The seat of any Senator or member of the House becomes _ipso facto_ vacant if he fails (without permission) to attend any session for two continuous months. No person having any pecuniary interest in any agreement with the public service (except as member of an incorporated company of at least twenty-five persons), or holding any office of profit under the Crown, can sit in either House, unless he be a Minister either of the Commonwealth or of a State. The exception is noteworthy, not only because it is framed with a view to the establishment of Cabinet Government, but also because it implies that a man may, contrary to American and Canadian usage, be at the same time both an executive official of a State and also a member of the Federal Legislature. It would appear that women are eligible to membership of either House. Every Senator and Representative is to receive a salary, fixed for the present at £400 ($2,000) a year.

Footnote 227:

See Amendment XV to the Constitution.

XI. THE EXECUTIVE.

The Executive is to consist of the Governor-General and the Ministers. To the great convenience of the Australian people, the head of the Executive does not need to be elected either by popular vote (as in the United States) or by the Chambers, as in France and Switzerland. He is nominated by the British Crown, and holds office so long as the Crown pleases, receiving a salary fixed, for the present, at £10,000 ($50,000) a year (exactly the salary of the American President). He has an Executive Council, modelled on the British Privy Council (though the name Privy Council is not used as it is in the Canadian Constitution), and from it he chooses a number of Ministers (fixed for the present at seven) who are to administer the several departments of the public service. They must be members of one or other House of Parliament—a remarkable provision, for though this is the British practice, that practice has never been embodied in any positive rule. As the Governor-General is only a constitutional figure-head, these Ministers will in fact constitute the ruling executive of the Commonwealth.

XII. THE JUDICIARY.

The Judiciary is to consist in the first instance of a Federal High Court (containing a Chief Justice and at least two other judges) capable of exercising both original jurisdiction in certain sets of cases, and also appellate jurisdiction not only from single Federal Judges and inferior Federal Courts, but also from the Supreme Courts of the States. Power is taken both to establish lower Federal Courts and to invest State Courts with federal jurisdiction. But besides this Judiciary proper, there is created a second Court for dealing with cases relating to trade and commerce, under the name of the Inter-State Commission (sect. 101). This remarkable and very important institution has doubtless been suggested by the United States Inter-State Commerce Commission created by Congress some eighteen years ago in order to deal with railway and water traffic between the States. Its functions will be half-administrative, half-judicial, and in questions of pure law an appeal will lie from it to the High Court, while a guarantee for its independence is found in the clause which declares that its members shall not be removed during their seven years’ term of office. All Federal Judges are to be appointed by the Governor-General, that is to say, by the Executive Ministry. All trials (on indictment) for any offence against the laws of the Commonwealth shall be by jury, and held in the State where the alleged offence was committed. The judicial establishments of the States remain unaffected, and the judges thereof will continue to be appointed by the State Executives.

In determining the functions of the High Court there arose an important question which seemed for a moment to threaten the whole scheme of Federation. The draft Constitution which the Convention had prepared and which the people had approved by their vote provided that questions arising on the interpretation of the Constitution as to the respective limits of the powers of the Commonwealth and of the States, or as to the respective limits of the constitutional powers of any two or more States, should be adjudicated upon by the High Court of the Commonwealth, and that no appeal should lie from its decision to the Queen in Council (_i.e._ to the Judicial Committee of the Privy Council in England, which is the Supreme Court of Appeal from the British Colonies and India), ‘unless the public interest of some part of Her Majesty’s dominions, other than the Commonwealth or a State, are involved.’ When the draft reached England to be embodied in a Bill, the British Government took exception to this provision as tending to weaken the tie between the mother country and the colonies. There were many in England who thought that it was not in the interest of Australia herself that she should lose, in questions which might involve political feeling and be complicated with party issues, the benefit of having a determination of such questions by an authority absolutely impartial and unconnected with her domestic interests and passions. How much better (they argued) would it have been for the United States at some critical moments could they have had constitutional disputes adjudicated on by a tribunal above all suspicion of sectional or party bias, since it would have represented the pure essence of legal wisdom, an unimpeachable devotion to legal truth!

To this the Australians replied that the experience of the United States had shown that in constitutional questions it was sometimes right and necessary to have regard to the actual conditions and needs of the nation; that constitutional questions were in so far political that where legal considerations were nearly balanced, the view ought to be preferred which an enlightened regard for the welfare of the nation suggested; that a Court sitting in England and knowing little of Australia would be unable to appreciate all the bearings of a constitutional question, and might, in taking a purely technical and possibly too literal a view of the Constitution, give to the Constitution a rigidity which would check its legitimate expansion and aggravate internal strife. Australia must—so they pursued—be mistress of her own destinies, and as it is she that had framed and procured the enactment of this Constitution, so by her ought the responsibility to be borne of working it on its judicial as well as its executive and legislative side. Not only was this better for Australia herself, but it would be more conducive to the maintenance of the connexion between the Commonwealth and the mother country.