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II. The National Convention.




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9. Review of the Proceedings.

This little work naturally divides itself into two parts. The first is composed of the preceding chapters, which were written and published before the meeting of the National Convention, while the second is composed of a notice of the proceedings of the Convention and of its work. Whatever value the papers first published may have possessed was not taken away, but was increased by the Convention. The principles they seek to explain were embodied in the proposed Constitution, and consequently they may be read as showing, in part at any rate, the reasons which were in men's minds when the Constitution was drafted.

The National Convention, composed of seven delegates from each colony (New Zealand, however, sending only three), met in the hall of the Sydney Legislative Assembly, 2nd March, 1891. The list of members is given in an Appendix. There was not a member who had not played a part in Australian politics, and some had played great and conspicuous parts. Moreover, as the delegates had in each case been elected by the local Legislatures, they were


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essentially representative men. To a large extent the delegature was composed of Premiers, Treasurers, Attorney-Generals, and chief of the various Opposition, that is to say, ex-Premiers, ex-Treasurers, and ex-Attorney-Generals, or, in other words, the picked men of Australian politics were present; and, consequently, the Convention was well qualified for its special task of framing a Federal Constitution which would be acceptable to Australia as a whole. The delegates unanimously elected Sir Henry Parkes as President, and Sir Samuel Griffith as Vice-President.

The communications that passed between the delegates before they formally assembled were highly satisfactory, because they made evident that there was not only a general desire to achieve a success and to formulate a constitution which Australia could adopt, but also that there was a substantial and a gratifying agreement upon main issues. It had been expected out of doors that the difference of opinion would be marked as to tariff arrangements, and that upon this rock the Convention would split; but the common sense and patriotic view generally prevailed that there must be a Customs union, based on the federal taxation of foreign imports and on an absolutely free interchange within Australian bounds, so that the island continent may form the one market. The delegates realised that their meeting was a farce if they could not create the one commercial, manufacturing, and producing Australia.




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It was found, also, that up to a certain point the delegates were of one mind with regard to the relative position of the states or colonies, and of the federal or Australian Government. This fundamental question had been thought out by many minds, representing different schools of thought, and up to a particular point the one conclusion had been arrived at. This was, that the earlier federal systems of America and Switzerland are more suited to the circumstances of Australia than the later Canadian federation. Such a result was unexpected, because nearly every British thinker starts with a bias in favour of the Dominion Constitution. It was adopted later in the day than the others; it was adopted by our own countrymen; it is constantly praised in the English textbooks; and so it comes to us with strong recommendations. Australians would have felt a genuine pleasure in following in the steps of Canada, but her statesmen found this an impossibility, and their unanimity must be held to dispose of the question. Some of them were strongly in favour of the Canadian system when they first attacked the Australian problem, but one and all of them ended by recognising that the Canadian peculiarities must be abandoned. On exchanging views the Australian delegates discovered that they, one and all, objected to the Federal Government delegating power to the states instead of the states retaining all powers, except such as they choose to specifically surrender to the Federal


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Government. They objected also to a nominee Upper House, inasmuch as such an arrangement is repugnant to democracy, with its love of representative institutions. Moreover, a nominee Chamber is particularly obnoxious to the party which favours the recognition of state rights, because it evidently deprives the states of the possession of a powerful, if not a co-ordinate, House. The strongest possible objection was taken also to the federal veto which obtains in Canada, the belief being that the high-spirited and powerful Legislatures of the Australian states or colonies would decline to work with this sword hanging over their heads—would refuse to make any such admission of inferiority. Exception was taken to other Canadian arrangements, which need not be enumerated, but the effect of which is to municipalise the provincial Legislatures. The Canadians, it is pointed out, practically recognise their surrender of local independence by speaking of “provincial” institutions, and by establishing in some provinces only one House, this being the ordinary municipal system.

Yet the agreement about state rights did not cover the whole of the ground, and the very first day the Convention proceeded to business the dispute broke out which threatened to ruin all. It was at once seen that there were two parties in existence. The one led by Sir Henry Parkes (New South Wales) and Mr. Munro (Victoria) admitted that the states


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must be sovereign states in the sense that each must be left to the uncontrolled management of its own affairs, but they contended that this rule of absolute control applied also to the National Government, and that what powers the states surrendered to the National Government they surrendered finally and absolutely, without having, as states, any further voice in these matters. The other party, led by Sir Samuel Griffith (Queensland) and Sir John Downer (South Australia), challenged the vital issue in this contention. Not only, they said, do the states retain control over local affairs, but such surrender of powers as they make not to a nation, but to a federation, and there can be no true federation unless the group of sovereignties constituting the union are separately represented. Both parties were practically agreed that the Senate should be elected by the Parliaments of the states, but the one merely adopted this system as a convenient machinery for calling a second house into existence, while the other adopted it in order to give effect to their views that the states must be a power in the national organisation. The one party treating the Senate as an ordinary Upper House of the English or class type, was inclined to insist that it should be severely restricted in its authority with regard to money Bills, and the other claimed that it should have, if not equal rights, at least some substantial power, in order that state rights might be maintained. Sir Henry Parkes


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and Mr. Munro claimed that as regards money Bills the two Houses of the Federal Parliament should stand in the same relative position as the House of Lords and the House of Commons, and Sir Samuel Griffith and Sir J. Downer looked rather to the two Houses of the Swiss and the American and the German federal unions, and also to the Senates of France and Italy and other European countries, the rule with these bodies being that money powers are not denied. The House of Lords, they urged, is a non-federal and a non-representative body, and can therefore be no model for a federal democracy. The one party took “the British Constitution” for its cry, and the other “federal principles.” Battle was joined fairly and at once, and was continued almost to the end of the proceedings, nor is the stubbornness of the contest to be wondered at when the interests at stake are considered. If the Senate is to have little or no power in finance, the states are excluded from any control in the questions, such as the tariff, in which they are the most vitally interested, and the House itself must wither, while, if it has real power in finance, the states are fully recognised as entities and their House may flourish.

The first difference of opinion was as to the admission of the press. A decision in favour of full publicity was unanimously arrived at.

The procedure adopted was that Sir Henry Parkes, as President, should table general resolutions on which


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debate could take place and on which, as amended and accepted, a Bill could be framed. Sir Henry Parkes submitted these resolutions, and they provided that the federation should be under the Crown, that the states or colonies should retain all the powers they did not surrender to the Federal Government; that a Customs union should be established so as to give intercolonial free trade, that the Senate or Upper House should have no power to amend money bills, that the Executive should be responsible to a majority of the Lower House, and that a Federal Supreme Court should be established, whose decision should be final. These resolutions raised the whole of the questions in debate, and the discussion which took place upon them cannot be considered as wasted, inasmuch as it enabled the committee to prepare a Bill which satisfied the Convention as a whole. Three questions were argued. The first was as to the character of the Senate and its powers; the second was as to whether “responsible” or party government should be formally recognised and established by enactment; and the third was as to the tariff.

The State Rights—Senate Debate.

As to the Senate, the party that pleaded for “an absolute surrender to the nation” declared that a Senate with financial powers meant government by the minority. Under such a scheme the people would be taxed without direct and proportionate


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representation, and consequently a principle was introduced foreign to the British Constitution. A British people could not be expected to consent to such terms. There was no reason to suppose that the large states could ever use their majority in the Lower House to the financial detriment of the smaller states, and certainly, it was urged, the federal spirit requires trust in each other's good faith and honesty of intention. The Victorian speakers in particular recalled the disastrous strife between the two Houses in their state, and declared that they could not propose to their constituents a scheme giving any Upper House power to amend money Bills, inasmuch as popular indignation would be at once aroused. The reply of the federal or state rights party was that the proposed Upper House would not be a class or a nominee body such as obtains under the British Constitution, but would be a House representing Parliaments, which in their turn represent the people. They did not ask for full and equal money powers, but merely that no Bill should pass nor any part of a Bill, nor yet should any expenditure take place without the assent of the states. Their idea was not that the Senate should amend money Bills, but that it should strike out any items to which it objected, or in other words that it should “veto in detail.” No power of proposing taxes or of increasing taxes was demanded, but it was said the right to stop taxation obnoxious to a majority of the states must be insisted


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upon as an integral part of any true federal compact. Otherwise a land tax which would be perfectly fair for the rich and thickly populated states might be adopted, though it would be ruinous to the poorer and sparsely populated portions of the country, or a federal expenditure of which the bulk of the federated states disapproved might take place, or a tariff might be passed hurtful to the distant communities. The large states, it was urged, ran no risks, and practically surrendered nothing inasmuch as their majority in the Lower House secured them, but the smaller states could not be expected to come into a federation, bringing their liberties with them, without the usual federal guarantee. The cry of no taxation without representation was, it was pointed out, raised in America, but America has never objected, and does not object, and is never likely to object to a federal check upon federal expenditure.

A strong point made by Mr. Munro and Sir Henry Parkes was that given two equal Houses and responsible government would become impossible. No ministry, it was said, can serve two masters. The reply was that the assertion is prophecy, and prophecy is often fallacious. Ministers are not wrecked if an Upper House amends or rejects an ordinary Bill, and why should they take the fate of a money measure more to heart. No Upper House would ever wantonly throw the affairs of a country into confusion, and certainly not a Senate responsible to the Parliaments


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of that country. In Tasmania the Upper House exercises financial control, and the Premier and the Leader of the Opposition of that colony were put up to affirm that responsible government was by no means interfered with by the working of the system.

Sir Samuel Griffith, in opening the debate, quoted from the Federalist the federal rule, “that every law submitted to the Federal Parliament shall receive the assent of the majority of the people, and also the assent of the majority of the states. This is the essential condition of the union.” (Convention Debates Official Reports, page 30.) He added:— “This is a condition absolutely new to us in Australia. It is absolutely new to us in the British Empire.” But the hon. gentleman went to assert that though the condition was new it was indispensable, and, further, he declared that “the proposal that the Lower House shall have the sole power of originating and and amending all Bills appropriating revenue or imposing taxation seems to me, as I am at present advised, quite inconsistent with the independent existence of the Senate representing the collective states.” Sir Samuel Griffith gave instances of the injustice which could be done, as he claimed, if the power of veto were not given to the States House. The states might object to the proposed site of the federal arsenal. Why should their views be disregarded? A land tax unfair to one of the poorer colonies, though perfectly fair as regards others, might


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be included in a general Bill. Why should not the Senate veto that one item? The very opposite view was at once taken by Mr. Munro, who declared that “in questions of finance the Lower House must have the ultimate power. I am satisfied that under responsible government, and that in justice to all the colonies, you must do that. You cannot allow a small section to govern the majority on a question of finance. You cannot give 250,000 people the power to tax 2,500,000 against their will. Surely that sort of thing is not intended?” Sir John Downer, who subsequently took the lead of the more pronounced of the Senate advocates, referred, in reply, to the example of America. There has always been in America a greater disproportion between the population of the States than there is in Australia, but the whole body of the American people have cheerfully acquiesced in granting the States equal representation in the Senate, and in endowing the Senate with full financial authority. In asking only for leave to omit objectionable items, Sir J. Downer declared that he was astonished at his own moderation. Sir Henry Parkes, on the other hand, protested with warmth that Australia had nothing to do with the Senate of the United States; he passed a high eulogium upon the House of Lords, and declared that he would be no party to entrusting any Upper House with greater financial powers than Great Britain, as the result of her experience gave to that body. The Convention


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went into committee in this conflict of mind and came out of committee in this conflict also. An amendment was submitted by Sir John Downer, authorising the Senate to veto in detail, and another was proposed by Mr. Wrixon, refusing the power of amendment, but providing against tacks and thus strengthening the power of rejection. Both were withdrawn. A general committee, with sub-committees, had to be appointed to draw up the Constitution, and to this body was left the responsible and arduous task of reconciling the apparently irreconcilable views on the Senate and states rights issue.

The Responsible Government Debate.

The terms of the Parkes resolution practically made party or responsible government a portion of the Constitution by providing that, to hold office, Ministers as a whole must obtain and retain a majority in the Lower House, and this proposal provoked criticism. Sir Henry Parkes contended that the step was right and proper, because Great Britain has worked party government in its present English form with success, and because she is wedded to it and so are her colonies. On the other hand it was alleged that the principle that the Ministry proceeds from a party and is responsible to that party is no fixed part of the British Constitution, nor is it mentioned or legislated for in any of the constitutions granted by Great Britain to her dependencies. There is no such


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provision in Canada, nor yet in any of the Australian enactments. The critics averred that they made no attack on party or responsible government, but on the contrary they admitted that a start would have to be made with it, but they urged that the hands of the Federal Parliament of Australia ought not to be tied when the hands of every other Parliament are left free. If Ministers are entitled to sit in Parliament then Parliament can be left to appoint them and to remove them at pleasure. The essence of the British Constitution, it was pointed out, is not an Executive responsible to a party, but is elasticity and freedom. If this generation has a right to appoint and to remove Ministers in one way, another generation should be at liberty to appoint and to remove them in another. There was no effective reply to these arguments, and at the conclusion of the debate it was frankly recognised that the cause of restriction was lost and that the Federal Parliament must be left free to constitute its Executive at pleasure.

The American system, under which Ministers are removed from Congress and are responsible to the President, who appoints them, found no support. It was agreed that Parliament must elect, and must elect from its own members. The points at issue were as to the mode of election, and as to the period and tenure of office.

Sir Samuel Griffith, Mr. Deakin, and Mr. Inglis Clark, and many of the younger members favoured


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the idea of an ultimate change in the appointment of the Executive. For the most part they look to the Swiss system, under which Ministers are elected for a fixed term, as a legitimate middle way between the American system where Ministers are irremovable by the Houses, and the British system where the Treasury seats are played for by the Ins and Outs, and the Ministry does not know what a day may bring forth. It was pointed out that Sir Henry Parkes and his friends, who apparently imagined that the British Constitution is a fixture, or can be stereotyped without danger, might with advantage study Sir Henry Maine's Popular Government on the subject. In that volume the writer—the most acute and well-informed of modern conservative philosophers—pours out the reflections and wisdom of an observant lifetime, and his remarks on the rapid changes in the British Constitution are ad rem. He remarks that Montesquieu's maxim that the separation of executive and legislative functions is liberty, and that their union is tyranny, greatly swayed the Americans. “But,” says Maine, “the national assembly whose constitutional practice suggested to Montesquieu his memorable maxim has in the course of a century falsified it.” Now, if England has reversed her practice—has absolutely swung round—in a century, the Australian colonies, it is urged, may surely be left free to modify their practice as experience suggests. One of the


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decisions arrived at, namely, that Parliament may appoint Ministers who will not have to go back to their constituents for re-election, is itself an important departure from the British Constitution. Should this arrangement encourage cabals, the need will then arise of giving the Ministers greater stability, and so evolution proceeds.

The Tariff Debate.

The discussion on the tariff disclosed the unanimity that prevailed on this point. At the commencement of the proceedings some outspoken remarks by the Queensland Treasurer attracted much attention.

Sir Thomas McIlwraith said (Convention Debates Official Reports, page 60) :— “There is no question in my mind that the President's resolutions which I have read imply free trade between the federated colonies and protection against the rest of the world. There is no doubt in my mind that this is implied, because, in the present position, the protectionists will, of course, vote for such a system, and the free traders will require to vote for it also if they desire federation, because this is the only means by which they can get the revenue. Unless they did, the result of the first law passed would be to dislocate the revenue branch of the Governments of the separate colonies. Take the case of Queensland. They cannot say to that colony all at once, `We intend to have free trade, and the money previously obtained by your Government


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through the Customs you must get from another source.' This would burst up the confederation before it was fairly started. We must proceed on the supposition that there will be free trade between the colonies and protection against the world. I believe that the opinion of the colonies is that this would be a good National Australian policy.” These views were endorsed by every following speaker, the only appearance of dissent came from Mr. Deakin and Col. Smith, who intimated that while Victorian protectionists accepted the policy of protection without and free trade within, they might require some guarantee both that the Federal Parliament would adopt it and also would impose duties of the same amount as those levied in Victoria. It was pointed out, however, that no guarantee can be given, inasmuch as no Parliament can bind its successors, and this consideration, and the fact that the delegates one and all accepted “protection without, and free trade within” as the policy with which the federation must start, induced the Victorian delegates in question to abstain from disturbing the unanimity of the Convention.

Appointment of Committees.

Finally on the 18th March, sixteen days after the first meeting, three committees were appointed to draw up the Constitution. The first was the constitutional or general committee, and consisted of two


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members from each delegature, with Sir Samuel Griffith as chairman. To it the other committees made their report. The finance committee, presided over by Mr. Munro, consisted of one member from each delegature, and the judiciary committee presided over by Mr. Inglis Clark, was similarly constituted. The names of the members are given in an Appendix. The sub-committees soon made their report, but the constitutional committee naturally found much greater difficulty; the Senate and state rights were the trouble. When an agreement was finally arrived at, Sir Samuel Griffith was requested to draw up the Bill. The hon. gentleman was assisted by his fellow member, Mr. Inglis Clark, and the advice of Mr. Kingston, and subsequently that of Mr. Wrixon, was also sought. There were grave doubts as to whether any compromise the committee could propose would be acceptable to the Convention as a whole or to the colonies, and several of the leading delegates lost hope, and expressed opinions that the result would be a failure.

Re-assembly of Convention.

The Convention re-assembled on Tuesday, 31st March. The Constitution Bill was at once presented, and was explained by Sir Samuel Griffith. It was a striking, and to a large extent an unexpected, success. The hon. gentleman was warmly congratulated, both privately by the delegates and publicly in the press,


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both on the skilful, non-technical, and non-ambiguous character of the draft, and also on the complete and happy manner in which he had caught the spirit and had interpreted the thoughts of hon. members, and in disputed issues had found a middle way. The more the measure was considered the more it grew upon the delegates, until, at last, the conviction spread that to tinker with such interwoven proposals would be to destroy the efficacy and the symmetry of the whole, and when Mr. Suttor declared in the middle of the discussion that he had come to the conclusion to “Go for the Bill, the whole Bill, and nothing but the Bill,” he was warmly applauded. This feeling, it should be added, did not become general until the replies given by Sir Samuel Griffith had convinced the Convention that he and his fellow-labourers had gone far more exhaustively into the various subjects, and had a far firmer grasp of them, than any of their critics. After short second reading addresses from Mr. Wrixon and from Mr. R. C. Baker, and a reply from Mr. Inglis Clark, the Convention went straight into committee on the Bill, thus adopting its principles.

The Constitution Bill.

The main feature of the measure was that it embodies “the South Australian plan” of dealing with money Bills. This is that the Upper House shall not amend such measures in the ordinary way,


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but if it objects to any portion of a financial measure, shall send down a message suggesting the alterations it desires, the Assembly being free to adopt these suggestions, to reject them or to accept them with alterations. The merit of this plan appears to be that the Assembly does not formally concede the right of amendment to the Upper House, and at the same time the Upper House is not shut out from letting the Lower House know that unless alterations are made there is a chance of the right of veto being exercised. It is scarcely a logical plan, but rather it is one of those charmingly illogical schemes which Englishmen take to kindly, and which it gives them a pleasure to work as demonstrating their saving common sense, and their inherent sagacity. The institution of party government had, of course, been treated as an open question, the people and the Federal Parliament being left free to please themselves. Free trade within the Australian borders was insisted upon, and provision was made for the imposition of a federal tariff on goods imported from without.

The name adopted by the constitutional committee, “the Commonwealth of Australia,” challenged criticism. It was pointed out that the meaning of the term is “common-weal,” and that it is a frequent phrase with Shakespeare and the Elizabethan writers, and Sir Samuel Griffith declared that the more it was used the better it was liked. An effort by


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Mr. Munro to secure the title “Federated States of Australia” was defeated by 26 votes to 13. A more serious amendment was moved by Sir George Grey, and was to the effect that the Governor-General should be elected by the people at large instead of being appointed by the Crown, but the proposal was not taken seriously and was negatived by 3 votes to 35. Mr. Kingston and Dr. Cockburn joining the minority.

The State Rights—Senate Settlement.

Real debate did not begin until the clauses defining the power of the Senate with regard to money Bills was reached. The important section setting out the powers of the Federal Parliament was readily passed, the delegates, one and all, concurring with the proposals. But issue was once more joined with regard to Senate powers. Sir Samuel Griffith stated that he had changed his position, though he had not modified his views. Those who desired the end desired the means, and as he desired federation he accepted the only means which would bring about the desired result. An amendment was moved by Mr. R. C. Baker to strike out all the words qualifying the action of the Senate, and it received warm support. Virtually it was said only two states could be represented in the Lower House, while the Senate would be the House of all the states. The minor states who were dominated in the one body would be utterly


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crushed if the states House had not full financial power. Mr. Playford repeated, however, the evidence which had swayed the committee, that the “suggestive” arrangement was formed to satisfy the Upper House of South Australia, and that it had ended all disputes and troubles, and after an animated discussion the proposal of the committee was accepted as a fair compromise by a majority of 22 votes to 16. The voting was:—

AYES.

                               
VICTORIA (7).  QUEENSLAND (4). 
Mr. Munro.  Sir S. Griffith. 
Col. Smith.  Sir T. McIlwraith. 
Mr. Gillies.  Mr. Rutledge. 
Mr. Wrixon.  Mr. Macdonald-Paterson. 
Mr. Fitzgerald. 
Mr. Cuthbert.  SOUTH AUSTRALIA (3). 
Mr. Deakin.  Sir J. Bray. 
Mr. Playford. 
NEW SOUTH WALES (4).  Mr. Kingston. 
Sir H. Parkes.  TASMANIA (3). 
Mr. McMillan.  Mr. Inglis Clark. 
Mr. Suttor.  Mr. Fysh. 
Sir P. Jennings.  Mr. Bird. 
WESTERN AUSTRALIA (1)  NEW ZEALAND
Mr. Hackett.  Nil. 

NOES.

   


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VICTORIA NEW SOUTH WALES (1). 
Nil.  Mr. Dibbs. 
QUEENSLAND (2).  SOUTH AUSTRALIA (4). 
Mr. Donaldson.  Dr. Cockburn. 
Mr. Thynne.  Mr. Gordon. 
Sir J. Downer. 
TASMANIA (3).  Mr. Baker. 
Mr. Douglas. 
Mr. Burgess.  WESTERN AUSTRALIA (4) 
Mr. Moore. 
Mr. Marmion. 
NEW ZEALAND (2).  Mr. J. Forrest. 
Sir G. Gray.  Mr. A. Forrest. 
Capt. Russell.  Mr. Loton. 

Mr. Abbott (New South Wales) was in the chair. Mr. Macrossan (Queensland) died during the sittings of the Convention. Sir J. Lee Steere and Mr. Wright (Western Australia) and Mr. N. J. Brown (Tasmania) had left Sydney. Mr. Barton and Sir H. Atkinson were temporarily absent from the Assembly. These names account for the 45 delegates.

Miscellaneous.

Once the question of the Senate was disposed of, rapid way was made with the remainder of the Bill. The judicature chapter was adopted at the same sitting that the Senate division was taken. There was a marked divergence of opinion as to whether appeals in private cases should be restricted to the proposed Federal Supreme Court, and an amendment by Mr. Wrixon to allow all cases to go to the Privy Council obtained 17 votes as against 19. Sufficient


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stress was scarcely laid in the debate upon the circumstance that the Supreme Court of the Commonwealth will not be created without special legislation by the Federal Parliament, and that if the Federal Parliament creates the court it need not necessarily interfere with appeals to the Privy Council. The Constitution does not establish the court, but gives authority for its establishment with or without certain powers.

The most animated discussion took place with regard to the division of the surplus revenue. After paying all its own services, the Federal Government will have at least a surplus of £6,000,000 from the Customs receipts. The finance committee recommended that the distribution should be according to population, and the constitutional committee decided in favour of a return according to the contribution made by each state. At present Western Australia pays £4 per head through the Customs; Queensland £3 7s. 10d., and South Australia £1 15s., and even with a uniform tariff there might be large discrepancies. The Convention was favourably disposed to a distribution per population, but the great irregularity shown by these figures caused a change of view, and the distribution per states was maintained by a division in which Victoria, New South Wales, Queensland and Western Australia voted one way, and Tasmania, South Australia, and New Zealand another. This was the only instance in which solid voting by states


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occurred. Authority was given to the Federal Parliament to vary the mode of distribution. A proposal to destroy the surplus by taking over public debts, the interest on which would amount to the same sum, was favourably received, but it was submitted too late to be adopted. Power, however, is given to Parliament to act in this matter.

The position of the Governor of a state led to the only other warm discussion. Mr. Gillies moved to strike out the clause authorising the Parliaments of the state to make what arrangement they deemed fit as to the choice of a Governor, his view being that the “Queen's Governor” should always be retained, and he obtained 19 votes to 20. Sir Samuel Griffith, Mr. Munro, and others declared they were opposed to the states electing their own Governors, but they argued that the state ought to have the power to exercise at their discretion.

An attempt by Mr. Dibbs to induce the Convention to select the capital and to name Sydney as the place met with little support, and proposals to introduce the plebiscite, and to insist on the “one man one vote” principle, instead of adopting the state franchises, and also to elect the Governor-General by the direct vote of the people, were one and all signal failures. The two propositions last named were submitted by Sir George Grey, who consequently voted against the adoption of the Bill, and who was the only delegate to take this course.




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The Constitution was adopted on Thursday, 9th April, when the Convention dissolved after a session marked by good temper, great forbearance, and a highly creditable display of constructive ability. The last act of the delegates was, at the instance of the President, to give “three cheers for Her Majesty the Queen.”

10. Digest of the Constitution.

The Constitution is embodied in a Bill divided into eight chapters.

The Federation is to be entitled “The Commonwealth of Australia,” and the colonies are to be termed “States.”

Chapter No. 1 deals with the Parliament.

Legislative power is vested in a Federal Parliament, to consist of Her Majesty, a Senate, and a House of Representatives.

The Queen may appoint a Governor-General, whose salary shall be not less than £10,000 per annum. The Senate is to be composed of eight members for each state, to be directly chosen by the Houses of Parliament of the several states. The term of office is six years, but half the senators are to retire every third year. The senator must be thirty years of age, and must have been five years a resident within the Commonwealth.




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The House of Representatives is to be composed of members elected for a term of three years by the electors of the Lower House of each State, but no existing colony is to have less than four representatives. There is to be one representative for every 30,000 people. The member must be twenty-one years of age, and must have been three years a resident within the Commonwealth.

Members of both Houses are to be paid £500 per annum.

The powers of the Federal Parliament are stated as follows:—

The Parliament shall, subject to the provisions of this Constitution, have full power and authority to make all such Laws as it thinks necessary for the peace, order, and good government of the Commonwealth, with respect to all or any of the matters following, that is to say:—

  • 1. The regulation of trade and commerce with other countries, and among the several states;
  • 2. Customs and Excise and bounties, but so that duties of Customs and Excise and bounties shall be uniform throughout the Commonwealth, and that no tax or duty shall be imposed on any goods exported from one state to another;



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  • 3. Raising money by any other mode or system of taxation; but so that all such taxation shall be uniform throughout the Commonwealth;
  • 4. Borrowing money on the public credit of the Commonwealth;
  • 5. Postal and telegraphic services;
  • 6. The military and naval defence of the Commonwealth and the several states and the calling out of the forces to execute and maintain the laws of the Commonwealth, or of any state or part of the Commonwealth;
  • 7. Munitions of war;
  • 8. Navigation and shipping;
  • 9. Ocean beacons and buoys, and ocean lighthouses and lightships;
  • 10. Quarantine;
  • 11. Fisheries in Australian waters beyond territorial limits;
  • 12. Census and statistics;
  • 13. Currency, coinage, and legal tender;
  • 14. Banking, the incorporation of banks, and the issue of paper money;
  • 15. Weights and measures;
  • 16. Bills of exchange and promissory notes;
  • 17. Bankruptcy and insolvency;
  • 18. Copyrights and patents of inventions, designs, and trade marks;
  • 19. Naturalization and aliens;



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  • 20. The status in the Commonwealth of foreign corporations, and of corporations formed in any state or part of the Commonwealth;
  • 21. Marriage and divorce;
  • 22. The service and execution throughout the Commonwealth of the civil and criminal process and judgments of the courts of the states;
  • 23. The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the states.
  • 24. Immigration and emigration;
  • 25. The influx of criminals;
  • 26. External affairs and treaties;
  • 27. The relations of the Commonwealth to the Islands of the Pacific;
  • 28. River navigation with respect to the common purposes of two or more states, or parts of the Commonwealth;
  • 29. The control of railways with respect to transport for the purposes of the Commonwealth;
  • 30. Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any state or states, but so that the law shall extend only to the state or states by whose Parliament or Parliaments the matter was referred, and to such other states as may afterwards adopt the law;



  •   ― 127 ―
  • 31. The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the states concerned, of any legislative powers with respect to the affairs of the territory of the Commonwealth, or any part of it, which can at the date of the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia;
  • 32. Any matters necessary or incidental for carrying into execution the foregoing powers and any other powers vested by this Constitution in the Parliament or Executive Government of the Commonwealth or in any department or officer thereof.

Further, the Parliament has exclusive power to make special laws for the people of any particular race, and to govern any territory which may become the seat of the Government.

With regard to money Bills it is provided that laws appropriating any part of the public revenue, or imposing any tax or impost, shall originate in the House of Representatives. The Senate has equal power with the House of Representatives in respect of all laws, except laws imposing taxation and laws appropriating the necessary supplies for the ordinary annual service of the Government, which it may affirm


  ― 128 ―
or reject, but must not amend. But the Senate may not amend any law so as to increase any charge or burden. Laws imposing taxation shall deal with the one subject of taxation only. The expenditure for services other than the ordinary annual services shall be authorised by a separate law or laws. In case of a proposed law which the Senate may not amend, the Senate may return it with a message requesting amendments, and the House of Representatives may, if it thinks fit, make such amendments, with or without modification.

Laws may be reserved for the Queen's assent, and the Queen may disallow a Bill within two years after it has received the Governor's assent.

Chapter No. 2 deals with the Executive. The Governor-General is authorised to create an Executive Council. For the administration of the executive government the Governor-General shall appoint seven Ministers, who may sit as members of either House of the Parliament. The salary of these Ministers (who form the Cabinet) is to be £15,000 per annum.

The control of the following departments passes at once to the Ministry of the Commonwealth:— Customs and Excise, Posts and Telegraphs, Defence, Ocean Lighthouses, Quarantine.

Chapter No. 3 deals with the Federal judicature. Parliament has power to establish a Supreme Court of Australia to consist of a Chief Justice and not less than four other judges. Also, Parliament may


  ― 129 ―
establish courts to administer federal law. Appeals from the state courts are to be made to the Supreme Court of Australia when it is established, and such appeals are to be final, but in any case in which the public interests are concerned leave may be obtained to further appeal to the Privy Council.

Chapter No. 4 relates to finance and trade. So soon as a federal tariff is imposed, trade throughout the Commonwealth is to be absolutely free. Parliament may annul any law or regulation made by any state derogatory from this freedom.

The expenditure of the Commonwealth is to be deducted from the revenue and—until Parliament otherwise orders—the surplus is to be returned to the states in proportion to their respective contributions.

The Parliament may, with the consent of the Parliaments of all the states, take over the whole or the part of the public debt of any state or states, deducting the interest from the state's share of the surplus revenue.

Chapter No. 5 relates to the states.

All powers possessed by the states, and not withdrawn by the Constitution of the Commonwealth, remain vested in the states. State law relating to withdrawn subjects remain in force until repealed or altered by the Parliament of the Commonwealth. In such cases, when two laws are inconsistent, the law of the Commonwealth prevails.




  ― 130 ―

All communications to the Queen are to be made through the Governor-General. The Parliament of a state may make such provision for the appointment of the Governor of a state as it thinks fit.

No member of the Parliament of the Commonwealth shall sit as the member of a Parliament of a state.

Chapter No. 6 relates to new states, and provides that existing colonies may enter the Commonwealth by adopting the Constitution, and that Parliament may admit new states on such terms as it thinks fit.

No territory is to be taken from any state without the consent of its Parliament.

Chapter No. 7 provides that the seat of government shall be determined by the Parliament of the Commonwealth. Until such determination the Governors of states shall name the place of the meeting of Parliament, or in the event of an equal vote, the Governor-General shall direct.

Chapter No. 8 provides that a law amending the Constitution must be passed by absolute majorities of both Houses, and by an absolute majority of State Conventions, the approving states to contain a majority of the people of the Commonwealth. The Conventions are to be elected by the electors of the House of Representatives.

Resolutions were also passed by the Convention recommending the Parliaments of the several states to make provision for submitting the Constitution to


  ― 131 ―
the people for their approval, and also recommending that the Constitution should be brought into force by Her Majesty's proclamation so soon as it has been adopted by three colonies.

11. Notes on the Constitution.

The student of the scheme of the Convention will realise that it leaves the enormous provinces of Australia with enormous powers to develop their individualities, and to guide their own destinies, and that it asks them to surrender merely such powers as are absolutely necessary to create the world-expected Australian nation.

As it stands, the Constitution aims at a true federation of the modern type, inasmuch as it provides for a double count of the people, first as population and next as states. If a nation had been founded, the voting would have been by the people only; and if a confederation, the voting would have been by states alone. Federation is the middle way.

The Australian Federation differs from the American Union on many points. There is no President but instead a Governor-General nominated by the Crown. The Ministers have seats in Parliament, and this allows of the continuance of the responsible or party Ministry as long as the country desires that system. The Senate has no executive functions, and neither are its powers with regard to money affairs


  ― 132 ―
complete. The state Governors are not necessarily elective. The Supreme Court of the states is not supreme in state matters, but there is an appeal from it to the Federal Supreme Court. The marriage and divorce law is taken from the states and given to the nation. The Federal Government is authorised to raise revenue in excess of its own wants on account of the states. On the other hand, it resembles the American Union in the fundamental principles that the federation is an alliance of states, each of which is sovereign in its own sphere, that the Senate is elected by the Legislatures of the states, and is thus made a powerful states House, that as far as possible the state institutions are used for federal purposes, and that the states retain all powers they do not voluntarily surrender.

Again, the confederation largely differs from Canada. In the first place, there is no federal veto over state legislation. The Governor of the state is not to be appointed by the Federal Government, and to be responsible to it, but whether he is the Queen's Governor or an elective Governor he is to be independent of the federal authority. The state retains all the powers it does not surrender. It retains, as in the American Union, the criminal jurisdiction. The Senate is a powerful elective House, with a large money veto power, and is not an inefficient nominee body, standing apart from the people, and with little or no monetary control. Moreover, the Australian


  ― 133 ―
Constitution provides for its own amendment by the Australian people, whereas in Canada the people have to obtain an Act of the British Parliament to amend theirs. But the Australasian Federation resembles the Canadian Union in the points that it is a union under the Crown, that a responsible Government is let in, and that the states expect the Federal Government to collect revenue, and that there is an appeal from the local courts to a federal tribunal.

Several of the features of the Bill are peculiar to Australia. The arrangement made with regard to money Bills has a local origin. So has the proposal to divide the Customs revenue according to the amount collected by the states instead of per head of the population. The arrangement is new that any state may accept a Queen's Governor, or may ask the Federal Government to appoint, or may decide to elect a Governor directly or indirectly itself. New, also, is the provision which may prove of great value, that the Federal Parliament may legislate upon any subject remitted to it by any two or more states, such legislation to be binding upon those states and upon any state or states adopting the same.

Co-ordinate power has been cheerfully granted to the Senate, except in the case of money Bills, and the concessions which have been made need scarcely create alarm. It is true that no tax could be carried and no novel expenditure could be incurred under the scheme without the consent of a majority of the


  ― 134 ―
allied states; but, on the other hand, no tax and no expenditure can be so much as discussed, nor yet the repeal or the amendment of any tax or the stoppage of any expenditure, without the preliminary consent of the Lower House. Nor is the Senate allowed in any way to increase the burdens of the people. The Senate may help to lighten the people's load, but it cannot render that load more heavy. It may fairly be argued that if there is to be any check upon expenditure we must go thus far, and that if there is to be a check it could scarcely be entrusted to safer hands than to those of representatives elected by and responsible to the local Parliaments. To many minds the merit of the Convention plan is that it recognises that there is a difference between monetary measures and other legislation. The Senate merely suggests alterations to the House, this being a broad hint to the Senate not to interfere vexatiously, nor to busy itself with details; while, on the other hand, the suggestion is an equally broad hint to the House of Representatives that there is such a thing as a power of veto reserved for proper occasions. This, at least, is the happy manner in which the majority of the Convention think that the plan will work.

The point upon which critics fix with regard to the Senate is the disproportion between the states. They argue that it is manifestly unjust to give Western Australia with 45,000 people, and Tasmania with 150,000 people, the same representation in the Senate


  ― 135 ―
as Victoria and New South Wales, each with more than a million of population. And these objectors are not satisfied with the reply that in the United States the one inalterable provision of the Constitution is that the states shall be equally represented in the States House. The contrasts in America are extreme, Nevada having 45,000 people, and New York 2,500,000, and yet no one has ever seriously proposed a change, and, not only that, but new states, poor in population, are regularly admitted on this basis. Still there is another precedent, and it is somewhat surprising that no reference was made during the debates to the German principle of a differential rather than of an equal or a proportional representation. Prussia has a preponderating influence in the German Federation, and as it was felt that the federal principle would be pushed to an absurd extreme if she were restricted in the Upper House to the representation of a minor duchy, a new arrangement was made. Prussia has 17 votes out of a total of 62 in the Upper House, Bavaria has 6, Saxony 4, Hesse 2, and the most of the other states 1 each. If the German states had equal representation in the Senate, then Prussia would be in a minority of 25 to 1. If the population basis were adopted, she would be in a majority, as she is in the Lower House, of nearly two to one. As it is, she is in a minority in the Upper House, but not a hopeless minority.




  ― 136 ―

The writer made the suggestion to several leading members of the Convention that many difficulties would be surmounted by a provision that no state should claim more senators than it was entitled to by population to return members to the Lower House. This would give Western Australia two senators and Tasmania five, and would leave the other colonies unbonded. Tasmania would soon achieve her full quota of eight and Western Australia would probably increase her senatorial strength each decade. Broadly speaking the rule would be that each colony, with a population of a quarter of a million people, would be entitled to its full quota of senators, and the colonies below that standard would work up to the full quota on a liberal allowance scale. The advantage would be that the federal principle would be preserved, but the extremes which tend to occasion dissatisfaction would be avoided. The suggestion was not made however, until after the Committee on the Constitution had presented its report, and it was considered too late to take action upon it. With regard to new states some such rule might be applied with advantage.

According to the present population returns the House of Representatives will be constituted as follows:—

               
Members 
New South Wales ...  39 
Victoria ... ...  38 
Queensland ... ...  14 
South Australia ...  11 
Tasmania ... ... 
Western Australia ... 
Total ... ...  111 




  ― 137 ―

If New Zealand came in her quota would be 22. Of course the census may alter all this. Estimates of population are seldom found to be exact when the count comes to be made.

12. The Free Trade—Protection Settlement.

The disappearance of the tariff difficulty from the path of the National Convention was one of the most significant and hopeful incidents connected with the proceedings. The event is another illustration of the line, “Fling but a stone, the giant dies!” Very likely the Convention is in advance of public opinion to some extent. The general willingness to come to terms manifested by the delegates may not prevail out of doors, but the fact remains that forty-five men who are Parliamentary leaders, and who represent parties, see their way to an arrangement which they are prepared to recommend to their constituents and to defend on its merits. And this arrangement is not a mere modus vivendi or a patched-up compromise, but is one which both parties can accept with satisfaction, as taking nothing away from them that they prize, and as giving to each something that it greatly desires. The Conference has disclosed not grounds of difference, but reasons for unity.

Freetraders certainly ought not to criticise nor to obstruct the proposed compact. If the freetrader looks about him, what does he see? Notoriously


  ― 138 ―
protection is in possession of the field in all the colonies except New South Wales, and everyone must recognise that the protectionist party has increased there during the last ten years, until now the issue of the next general election is a matter of doubt.

The statesman sees Australia not merely committed to protection, but committed to that primitive, barbarous, and exploded form, which consists of provinces of the same state preying upon each other with the inevitable result—alike degrading and dangerous—of fostering bitter local animosities. His obvious duty is to mitigate as far as possible what he regards as an evil, and the Convention compact enables him to do this. Its great advantage to such a man—to a freetrader seeking his country's good—is that it sets aside for ever and a day the particularly odious system of border duties, with their drag on the development of Australia, with their social inconveniences and their political risks; and this is an object for which he is entitled to make great sacrifices. On the other hand, all that he does is to accept the conditions which prevail in five colonies out of six, and which seem likely to prevail in the sixth also as regards the outside world. Practically, the freetrader does no more than recognise that he is in a minority, and as a member of the party of common-sense he is bound to do this; and, on the other hand, this frank recognition secures free trade throughout Australia for ever. We shall then be in the American position,


  ― 139 ―
the German position, the Swiss position, and the Canadian position. Whether in the course of years there will be protection or not as regards the outside world will depend upon the will of the people, who will make and alter tariffs as their interest and as their conscience may dictate, but free interchange inside the bounds of the federation will be the rock on which the union is established, and will endure for all time. In Germany, in Switzerland, in America, and in Canada, outside protection depends upon the decision of the people, who act as they are educated, but internal freedom is the inalterable law of their federal existence. The freetraders are put in possession of a citadel, which they occupy with the willing consent of all parties. There is no occasion to dwell upon the importance of securing such a position. And it may be submitted that freetraders sacrifice no principle in striving to attain it.

To protectionists the arrangement is equally honourable and equally satisfactory. The protectionist believes, as a matter of course, that his policy benefits the community, that it enriches the capitalist, secures higher wages to the workman, and that its advantages have only to be known to be appreciated. Give the system a fair trial, and he regards its permanent adoption as secure. He hails, therefore, with pleasure, the idea of committing all Australia to his scheme. The practical protectionist freely says that there is only one obstacle to his success, and that is


  ― 140 ―
the lack of a market. It is a law of manufactures that the larger the market, not only the cheaper the output, but the more numerous the manufactories themselves. The establishment of one calls for and renders possible another. Again, if you are only to turn out 10,000 yards of a particular cloth the price may be prohibitory, as that quantity has to bear the whole of the initial cost of the new article; but if 50,000 yards can be made, the initial cost will be so spread as to lower the price to a selling, and yet a payable, rate. All this is A B C to traders, but it is the reason why they are strongly in favour of throwing down the barriers as between the colonies. Each trader will have a larger market. He will be able to produce more cheaply what he is manufacturing now, and he will be able to add to his price-list articles which at present he cannot touch. The manufacturer knows, also, that the experience of the world is not wrong, and that the protectionists abroad would not adhere to this policy of the largest possible home market unless it was justified by results. He is well aware that in Canada or in the States or in Germany any proposal that the states should endeavour to injure each other would meet with universal reprobation as involving the ruin of the industries. They would be crushed in detail. To-day the protectionists in the States are not fighting for the isolation of Canada, but they are endeavouring to “capture” her in order to increase their home market, while the


  ― 141 ―
freetraders in America are ready to assist them, because the “capture” extends the area of fiscal freedom. Every protectionist leader abroad would tell the protectionists here that they are right in their effort to secure as large a home market as possible, but such advice is needless, because personal experience, that most efficient of all instructors, has taught the lesson.

13. Conclusion.

That the National Australian Convention will live in history is certain. Whether aught will come of its labours is, of course, another and a very different matter, but the friends of federation have obtained a scheme which they can put before the people as fairly raising the issue whether Australia, while preserving her local independence, should come together for certain specified broad national purposes. The hope must therefore be entertained that from this time forward the Bill and the Australian cause will become identical.

The provincialist will of course never be won over to any scheme. His small-minded and selfish idea that you benefit a locality by isolating it from its natural whole is not a garment to be detached at pleasure, but is a natural skin. He has always to be fought. He existed in America, in Canada, in Germany, in Switzerland, and he always will exist, because he represents a type, just as the jealous woman and the sullen man will always be amongst


  ― 142 ―
us. Happily for mankind more generous impulses and truer instincts—those that tell us that all men's good is each man's benefit—are in the end usually triumphant, and with Australian intelligence and Australian patriotism, the nobler cause should be sure of an early victory.

The influences and reasons which should sway the people of the Australian colonies to favour federation are great and enduring. United it is self-evident that they can preserve their island continent inviolate for the one race, the one language, and the one sovereign, while disunited they may sooner or latter tempt some military power, with a real or pretended quarrel with a weaker state, to found a settlement here—perhaps an Algeria, perhaps a Gibraltar. Socially and politically the colonies are saved by federation from envy of each other, and from petty stratagems and lowering bickerings; and they obtain instead great aims and nobler ambitions which they can honourably share together. In commerce disunion means that the Australian is to be deprived of his birthright and that he is to be shut up to Victorian, or Queensland, or Tasmanian products, whereas he has an inherent right to all the blessings and the bounties which Providence has showered upon Australia. A Federal Union means in defence, safety; in commerce, freedom and wealth; in society, peace; in politics, greatness. Also it means that Australia as a whole is a common heritage, is free without barrier to any and every Australian.




  ― 143 ―

This picture of a United Australia has no seamy side. The situation is one of those rare cases in which it can be said that by the adoption of a certain course there is everything to gain and naught to lose. It has been admitted that there are difficulties in the way—temporary, personal, and founded on misapprehension—but it may be contended that there are no drawbacks. The results are all pure national gain. As Lowell wrote of the issue of his country and of his day, so it may be said of the union or disunion of Australia—

“Set the two causes foot to foot
And every man knows which'll be winner
Whose faith in God has any root
That goes down deeper than his dinner.”

Recognising, indeed, that a healthy public opinion must be with the federalists, the provincialists for the most part confine themselves to assertions that the time is not ripe for unity. But it is to be feared that to many men who urge this view the opportune time would never come. There would never be a day when there would be no personal interests to be unnecessarily alarmed; no local jealousies to be extinguished; no molehills to be magnified by fear and suspicion into mountains. America had a smaller population when she federated than has the Australia of to-day, and to take a happier instance, Canada had no more people, and as regards resources and capabilities both countries occupied an inferior


  ― 144 ―
position to that of Australia. Nor can it be said that though we have the people and the resources, yet we have not the American nor the Canadian need for unity. It is true that we have no outside foe, nor yet a resident but alien population craving for Home Rule—and such factors as these were operative in the trans-Pacific States. But on the other hand there is an impalpable danger far more to be dreaded than any of these material troubles, in the extending and pernicious blight of provincialism—the blight which causes the one colony to be jealous of the other; which forbids the one to share the riches of the other; and which makes the very existence of those riches a reason why the one should regard the other as its nearest foe. We are told of constitutions in which

“The young disease, which must subdue at length,
Grows with its growth and strengthens with its strength.”

And there are ominous signs and indications that provincialism is this morbid and destructive influence with us. The struggle for unity is not likely to be easier but is rather likely to be more difficult later on, as local interests grow more powerful and manufacturing and producing rivalries more pronounced. Those who counsel delay would do well to realise the peril they run of postponing and postponing until unity becomes hopeless; and assuredly if “now” is possible, there can be no justification for running the chance of “never.”

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