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21. Chapter XXI. Conclusion.

THE Constitution of the Commonwealth of Australia contains few evidences of that experimentalism, for which the politics of the Colonies have become famous. Far from disdaining precedent, the founders of the Constitution availed themselves to the full of the opportunities, offered by modern literature, for a comparison of existing Constitutions; and the Constitutions throughout bear the impress of this study. The absence of any obvious cause imperatively calling for immediate union, such as has in every other instance of federal union determined action, allowed her a singular freedom of choice in working from her models.

The natural model for the union of a group of British Colonies would have been the Dominion of Canada, which, in its preamble, recites the desire of the Provinces to be united into one Dominion “with a Constitution similar in principle to that of the United Kingdom.” But the form of Canadian union was determined by special circumstances, both internal and external, very different from any which exist in regard to Australia. In the first place the fundamental character of the Dominion—the possession of the residuary power by the Dominion Legislature, and the subordination of the Provinces to the Dominion Government—was the natural outcome of the existing consolidation of the Provinces of Upper and Lower Canada. Just in

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the same way, if the policy of “Home Rule” all round were applied in the United Kingdom, we should expect to find residuary power and some controlling power in the Imperial Parliament and the Imperial Government. In the second place, it must be remembered that the years 1864–1867, during which the Canadian Constitution was taking shape, were years full of lessons from the neighbouring union. The War of Secession had discredited the principles of disintegration, upon which the Constitution of the United States was based; and the victorious States of the North were engaged in re-establishing their Constitution upon a basis, which greatly increased the central power, and might, indeed, but for the restrictive interpretation of the Supreme Court, have given to Congress a general controlling power over the State.note

If the federalism of Australia is the federalism of the United States and not that of Canada, the Parliamentary Government, which England has given to her Colonies and to Europe, is firmly rooted in the Constitution. That Cabinet Government presents singular difficulties, as applied to the federal system, is obvious, and, in 1891, there were grave doubts whether it could be a durable institution even in the single colonies. The great importance of administrative capacity and experience, in such communities as Australia, make it intolerable that affairs should be carried on with the ever-shifting personnel supplied by Parliamentary exigencies. But, since 1891, a great change has come over the politics of Australia and New Zealand; in every colony, long tenure of office and stability of government have superseded the kaleidoscopic movements of a few years ago, and in Australia not less than in England, men ask—Where and what is the Opposition? There was no more notable feature, in which the Convention of 1897–8 differed from the Convention of 1891, than in its unquestioning acceptance of the Cabinet system.

The accomplishment of Australian Federation is not to be regarded as an acceptance of any of the schemes of

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Imperial Federation, which have been or are in the air—the Australian Commonwealth is a measure “for enlarging the power of self-government.” But neither separation nor republicanism is to be inferred from the fact, that the federalism of Australia is that of the United States and not that of Canada. To answer such a suggestion, it is not necessary to do more than to point to the spirit of 1867-70, both in England and the Colonies, and compare it with the spirit of 1897-1900. In the earlier time, Sir John Macdonald and Mr. W. E. Forster stood almost alone, amongst the statesmen of the Dominions of the Crown, in a belief in, or even a hope for, the establishment of an enduring Empire under the Crown, upon a basis of self-governing communities. Now, every man, who wishes to vilipend another, calls him a “Little Englander.” When the Draft Bill of 1891 was under discussion, objection was often taken to its Imperializing tendency. But little was made of such objections in 1898-1899, though the vesting of power in the Crown or the Governor-General excited sometimes apprehension of autocratic power amongst people, who were unacquainted with constitutional forms.

In the number and character of the matters assigned to the Federal Parliament, the Australian Constitution follows the Dominion of Canada rather than the United States. The Fathers of the American Constitution, Mr. Bryce says, “had no wish to produce uniformity amongst the States in government or institutions, and little care to protect the citizens against abuses of State power. Their chief aim was to secure the National Government against encroachments on the part of the States, and to prevent causes of quarrel, both between the central and State authorities, and between the several States.”note But, in the 19th century, distance has been constantly shrinking, and divergence of laws and institutions, in two great countries whose inhabitants have perpetual intercourse, is to-day infinitely more inconvenient than the divergences of custom in neighbouring localities a few centuries ago. The century

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has seen the growth of a whole body of law for the settlement of the conflict of laws and jurisdictions, but it is obviously simpler, and more convenient, to go to the root of the matter, and establish a uniform law under a central government. Hence the great national states, which the political movements of the century have called into existence, have made “the law,” to a great extent, a national law. In Germany, there is a high degree of legal centralization; the legislative power of the Empire extends over the whole domain of ordinary civil and criminal law, and this power has recently given a uniform code of laws for the Empire. Canada was quite alive to the defects of the United States system in respect to the criminal and private law, and, accordingly, vested in the Dominion Parliament power over criminal law and procedure, over the laws of marriage and divorce, and over a large part of commercial law. Australia has shown even greater anxiety than Canada for uniformity of law; for, though criminal law is not made a Commonwealth matter, the Commonwealth Parliament has wider powers over family and commercial law than has the Dominion Parliament. But neither in Canada nor in Australia do we find the legal centralization of Germany.

The predominant feature of the Australian Constitution is the prevalence of the democratic principle, in its most modern guise.

It is true, that, in a federal government, the simple democratic plan of pure majority rule must make compromises with the principle of State right. But that is the only compromise which it makes in Australia. The federalism of Australia is the federalism of the United States; her democracy is her own. The American Constitution was born in distrust. To possess power, was to abuse it; therefore, in devising the organs of Government, the first object was, less to secure their co-operation, than to ensure that each might be a check upon the natural tendencies of the other. Large states, where the central power is far off, were more dangerous to liberty than

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small states, where popular control was more readily exerted; therefore, central power was to be no greater than was absolutely necessary for security against external attack and internal dissension. And the maxim, “Trust in the People,” carried the Fathers of the Constitution but a little way on the democratic road. Direct participation by the people in the ordinary functions of central government seemed equally impracticable and mischievous. The people could, at most, be choosers, and, even here, they were to act at second-hand; there was to be a College of Electors, who should exercise a free judgment in the choice of a President; the Senators were to be chosen by the Legislatures of the States. Thus, the most important offices in the Union were to be filled without the pressure of popular clamour. The Constitution was accepted not by direct vote, but by State Conventions, and amendments were to be approved either by the States Legislatures or by States Conventions. The Constitution of the Commonwealth of Australia bears every mark of confidence in the capacity of the people to undertake every function of government. In the Constitution of the Parliament, in the relations of the Houses, and in the amendment of the Constitution, the people play a direct part. There are no intermediaries in the formation of the Senate; the electors are the arbiters between the Houses; there are no conventions of select men to approve alterations of the Constitution. The artificial majorities of the American Constitution are not required. The system, governing the qualifications of members and electors, is dictated by a desire to rest those qualifications upon the widest possible basis.

In one notable matter, the Australian Constitution differs markedly from that of the United States. In America, the checks and balances devised by the Fathers of the Constitution were deemed an insufficient restraint of power, and were immediately supplemented by a comprehensive Bill of Rights, which placed the liberties of the citizen under the protection of the Constitution, and

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secured them against any attack by the Federal Government. More remarkable still in a federal constitution, there were a few provisions protecting the rights of the citizens of the States against their own States Government. It need hardly be said, that this spirit of distrust has so grown that the States Constitutions put many and varied rights of the citizen beyond the reach of the legislature, and that the amendments of the Federal Constitution which followed the War of Secession afford further security to individual right. From the Australian Constitution such guarantees of individual right are conspicuously absent. When the Constitution left the Adelaide Convention, it provided, that no State should make any law prohibiting the free exercise of any religion (section 109, Adelaide draft), and that a State should not deny to any person within its jurisdiction the equal protection of its laws (section 40). These provisions, however, disappeared, and every restraint imposed by the Constitution upon Commonwealth Parliament or State (except the provisions of section 116), may be referred to federal needs. When it was found, that the section, prescribing uniformity of Commonwealth taxation, might be read to protect individuals or classes against discrimination, care was taken to substitute words of geographical description. The great underlying principle is, that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.

As a federal system is deemed to be favourable to political experiments, there is no reason to suppose that the States in Australia will be less daring than the Colonies have been, in the adoption of “progressive measures.” It has been noticed, that the apathy of a class, which ordinarily gives a more continuous attention to politics than any other in Australia, was due to the fact, that the earlier programme of federation did not deal directly with any matter of “social and industrial reform.” It follows, that the matters, on which modern legislation experiments, remain almost without exception in the

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exclusive power of the States. The exceptions have been referred to—invalid and old-age pensions, and conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

Mr. Bryce has pointed out, that local self-government and federalism are distinct, and that it is perfectly possible to have a very high degree of centralization in a federal community.note Australia is a signal illustration of this truth. Notwithstanding the extensive powers of the Commonwealth Government, the States are capable of exercising most of the powers of sovereignty, and these extensive powers are exerciseable over vast areas, inhabited in some cases by a million of people, and capable in some cases of sustaining a population infinitely greater. As Mr. Bryce observes, the sort of local interest which local self-government evokes, and the sort of control which a township can exercise, is quite a different thing from the interest men feel in the affairs of a large body like a State, and the control exerciseable over the affairs of a community with a million of people. In the Colonies of Australia, such local government as there was, was established by the central authority, and existed as a highly artificial, and not very robust, product. In addition to undertaking many of the functions, which elsewhere belong to local governments, the central government also concerned itself with works, which, in other lands, fell to private hands. Thus, there existed all the conditions of a highly centralized government, and the mere transfer of some of the functions of the several States to a single authority is, of course, not a step towards decentralization. For some time, the States of Australia must be classed with the States characterized by the centralization of powers.

As to the future of the Federal Constitution, it has been seen that, by the adoption of so flexible a system as that of Cabinet Government, and by the provision of an exceedingly facile mode of amendment, the founders of the Constitution have left ample scope for development.

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Doubtless, the Cabinet system, as applied to Federal Government, will develop new conventions and understandings, affecting both the constitution of Ministries and the relations of the Houses of the Parliament. It has been remarked, that, in America, federalism acts injuriously upon the filling of public offices, since, in addition to considering the claims of individuals, it is necessary to placate the States by making some attempt at a fair distribution of offices amongst them. Already there are indications, that, in Australia, the same tendency will be at work to restrict choice.

It is the experience of Federal Government in the United States, in Germany, and in Switzerland, that, with or without any amendment of the constitutional law, the national government grows in power. If, in Canada, the provincial power has been found to be greater than was contemplated by the founders of the Constitution, it must be remembered, that this has been the outcome of interpretation by an external tribunal—the Privy Council— rather than the course of natural development in Canada, and that the liberal view, which has been taken of the power of the Province, has been greatly aided by the fact, that the Dominion Executive has a controlling power enabling it to check the abuse of provincial power. In Australia the great and numerous powers conferred upon the Commonwealth Government may for a considerable time be deemed sufficient, yet the very extent of power is one great fact which makes for increase.

In the United States, and in Canada, the development of the Constitution has been, less by formal amendment, than in the way of judicial decision. It has been abundantly shown in the United States, that the Constitution is a thing of life, with a marvellous capacity for adaptation to the ever-changing needs of the most progressive people of a progressive age, and the process of adaptation has almost uniformly resulted in the increase of the powers of the central government. Had there not been this power of adaptation, the Constitution would have been a serious obstacle to the work of nation-building; for the power of

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formal amendment is far too cumbrous a machine for every-day needs.

The great facility, with which the Australian Constitution may be altered, makes it probable, that its development will be guided, less by judicial interpretation, and more by formal amendment, than the development of the Constitution of the United States. It may be expected, too, that the Courts will construe the Constitution in a stricter spirit than has been common in America. They are not likely to lose sight of Marshall's warning:note “We must not forget that it is a Constitution we are expounding”; nor will they forget, that, in the interpretation of an instrument of government, there must be “the combination of a lawyer's rigour with a statesman's breadth of views.” But the most important judgments of the Supreme Court of the United States have been given under a deep sense that their construction was for all practical purposes final, and that the amending power was not available to mitigate the effects of their decision. The Australian Constitution is born in an age of legislation, and Courts will be more free to say, as to the Constitution, what they frequently say as to ordinary statutes—“It is our duty merely to declare what seems to us to be the law. If we are wrong, or if the consequences of the law as so declared are mischievous, the law can be altered.” So great indeed are the facilities offered by section 128 for altering the Constitution, that very competent expositorsnote have suggested, that, in the event of a difference between the Houses, it may be more convenient to pass ordinary legislation as an alteration of the Constitution under section 128, than to resort to the more elaborate “deadlock” machinery of section 57. Such a course may be possible, but, if it is adopted, it will lead to a “habit of tinkering” with the Constitution, which will give that instrument a portion in the national polity, very different from that, which has been won by its great prototype, the Constitution of the United States.

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