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The Balance of Power Between National and State Governments

by The Hon. W. P. Cullen, LL.D., M.L.C., Sydney

Federation is sometimes spoken of as a step in the direction of centralisation. It is more correct to describe it as a means of separating, as effectually as possible, those functions of Government which can best be exercised by a new authority having power to act for the whole country, from those which can best be exercised by authorities located in and identified with particular territorial divisions. The question to what extent the inevitable surrender of existing power may prove agreeable to the communities about to federate, and how far such a surrender is required for securing a satisfactory basis of union, depends a great deal on their previous history and present needs.

In the United States, the thirteen colonies, having thrown off the English yoke, were little inclined to a new superior in the shape of a Federal Government. Upon the Declaration of Independence they had become sovereign States, each of them as uncontrolled as England herself, or as France or Russia. The Confederation, which depended for its existence on their free consent, had no great hold on their minds, and was regarded with much jealousy. It was only the sheer necessities of the case, their failure to pull together as a body of neighbourly allies and the dangers to which this exposed them, that at length reconciled the States to the creation of a strong central Government. Even then, it was only after an express provision had been engrafted upon the original draft of the Constitution, securing to the individual States every function of Government not specifically conferred upon the new power, that the ultimate union was accomplished.

And when, half a century had passed, the authority of the federal power was for the first time flatly defied by certain of the States, the grounds and reasons urged in justification of their action were the same as those which had been discussed between the original contracting parties. Whatever interests and motives contributed to the war between North and South, the advocates of the seceding States insisted, that the real controversy was merely a legal one as to the rights of individual States under the Constitution.

In the discussions respecting Federation in these colonies the expression "State-rights" has at times acquired some prominence. It will avoid much misconception to remember that till Federation is an accomplished fact, the term can have no application here in the sense in which it was then applied in the United States. Here every right and


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power which the Legislature or Executive of a colony now possesses by law is inviolably its own until the Imperial Legislature thinks fit to alter the law. It is generally admitted that such alteration would in no case be carried out without the consent of the colony concerned. The sole object and purpose of the present Federation movement is to persuade the people of the various colonies simultaneously to give such consent. When they do so they will have joined in establishing new rights and powers by giving up some of those which they now enjoy. It will then, for the first time, be correct to speak of State Rights as applied to these colonies, in the sense above alluded to, and the expression will mean the rights they then retain as distinguished from the rights conferred by their gift upon the newly-established Federal Government. At the present moment these colonies have the power of choosing for themselves what those State Rights shall be. After the Federal Constitution is established they will no longer have this power; it will have passed from them by that alteration in the law.

In discussing the extent to which the new Constitution should take away the present powers of the various Legislatures, it is not enough to speculate as to what functions of government might usefully be discharged by the federal authority.

The more difficult problem is to ascertain how much power the people of the various colonies can now he persuaded to entrust to it. When once the federal spirit has taken a powerful hold upon men's minds it will go far to cure those inter-colonial jealousies with which we are so often reproached by old-world critics. Meanwhile, it is profitable to remember that those jealousies have already borne bad fruit, and are capable of producing more. A federal union can only be successful in proportion to the mutual confidence and loyalty existing among all its members.

Among the obstacles to such confidence there is a certain false analogy derived from reminiscences of the early days of colonial settlement. It is thought by some that the former happy triumph experienced by Victoria and Queensland when they obtained separation from New South Wales, may be reversed to some extent by Federation. These forget how essentially different are the two conditions of things; the former state of helpless dependency under a unified government, specially identified with one portion of the territory, and the proposed state of absolute equality, under a new Parliament equally representative of all.

Again, whatever may eventually be the location of the federal capital, many even now will anticipate that territory separated from it by, a thousand miles and upwards, will be more or less handicapped. We have also to reckon with those who point to the superior resources of a particular colony, and dread some imagined partition of this bounty of providence among neighbours less highly favoured. There are also those who prize so highly the results of some particular policy hitherto


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pursued by their own colony, that they fear any risk of the reversal of that policy. Instances will be found of free-traders who are afraid of the advent of protection, and of protectionists who are afraid of the unfettered competition of neighbouring colonies. There are railway theorists who remind us with what persistent efforts the trade of the capitals had been stimulated by differential rates. These predict a real blow to the wealth of their particular colony if the federal power is to have any control over those rates. And still another instance of the predetermining causes which may affect the terms of union, is found in the suspicion engendered in certain minds, that particular colonies may be found too "advanced" or radical in their politics for safety, unless the powers of the federal government are narrowly limited.

Those and similar considerations must be regarded, not necessarily as real obstacles to Federation of some kind, but as indications of the sort of difficulty to be overcome in arriving at a really useful and effectual federal compact. It is undesirable that the new Government about to be created should be felt to have dangerous powers left in its hands. We want a Federal Legislature in which the people of every Colony from Queensland to Western Australia shall have the same confidence as they have now in their own local legislatures, or, perhaps we ought rather to say, in which they feel no greater distrust than they now feel in their own local legislatures.

It must be admitted that the Convention Bill, of 1891, was, in its proposed distribution of powers, an honest, and, so far as can be pronounced without actual experience, a very successful attempt to solve these various difficulties. The defects revealed in it by subsequent criticism indicate at what points the conflict of interest is likely to become most pronounced. In its enumeration of the subjects of legislation to be dealt with by the Federal and Provincial Parliaments, it follows in a general way the provisions of the Federal Constitution already in existence elsewhere, all of which necessarily empower the National Legislature to deal with certain essentially national concerns. Then it adopts the model of the United States in preference to that of Canada, in that it expressly preserves to the respective Colonies their present powers of their own legislatures in regard to all matters not specifically laid down as falling within the jurisdiction of the Federal Parliament.

So much discussion has already taken place upon this feature in the Convention Bill that it is unnecessary, at this point, to do more than note that its effect, if adopted, would, under the circumstances, be to make the Australian Constitution entirely different from that of Canada, just as for another reason it must he materially different from that of the United States. The new Federal Government of Australia under this proposal, while limited, like that of Canada, on the side where its policy might conflict with that of the empire to which both are united, would have less power than that of Canada on the other side where the


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interests of Australia, as a whole, might conflict with those of individual Colonies.

This then, is one point at which the Convention of 1891, sought to secure the individual Colonies against any undue domination on the part of the new federal power. When the Canadian Constitution was adopted, about thirty years ago, it was thought that the balance of power should incline the other way. The spectacle of the Civil War in the United States, together with dangers then more immediately threatening the British possessions in North America, seemed to warn the statesmen of the day against leaving it open to any one Colony to pursue a course in opposition to the policy favored by the country generally, except in regard to certain matters definitely laid down in the Constitution Act. The danger most feared among ourselves at the present time, is the opposite one of having a central authority interfering in the affairs of particular Colonies, in matters where interference might do more harm than good.

Whilst making their choice in favour of the greater independence of the Provincial Parliaments, the Convention of 1891 added a few provisions, which would seem, to some extent, to moderate its effects. These provide for the Federal Parliament dealing with matters not committed to it by the Constitution, but specially referred to it from time to time by one or more of the Provincial Parliaments. A law so passed was to be limited to the colony or colonies making such reference, and to any others which might afterwards adopt it. They provide further under the head of "Equality of Trade" that the Parliament of the Commonwealth may make laws prohibiting or annulling any law or regulation made by any State, or by any authority constituted by any State, having the effect of derogating from freedom of trade or commerce between the different parts of the Commonwealth.

But, in addition to the limitation imposed upon the legislative authority of the Federal Parliament, a further safeguard to the independence of colonies was contained in the manner provided for the enactment of Federal laws. The Bill proposed to create an elective Second Chamber, in which all colonies should have an exactly equal voice, and which would, like the existing Legislative Councils, have power to reject every measure of which it did not approve. While restricting this Second Chamber from the origination of Money Bills, and from the amendment of any Bill in such a manner as to increase any proposed charge or burden on the people, it made provision against the tacking of other measures to taxation Bills, against the inclusion of different subjects of taxation in such Bills, and against the inclusion in the annual Appropriation Bill of expenditure for services other than the ordinary annual services of the Government. And the Bill further provided for the optional consideration by the popular Chamber of the Federal Legislature of amendments desired by the Second Chamber, but not within its competence under the restriction above mentioned.




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These provisions are clearly designed to, as far as possible, strengthen the Second Chamber in the interests of the individual colonies, while at the same time securing the power of the purse to the popular branch of the Federal Legislature. No part of the Convention Bill has been more severely handled by critics than that relating to the composition and powers of the Second Chamber. As to its composition it is objected that the equal representation of colonies in that body may enable a combination of the smaller colonies to injure a larger rival. In respect of its powers the objection is urged that Second Chambers are always too prone to override the popular will to the full extent of their opportunities. In both respects the experience of the United States affords most useful evidence. Their Senate has even larger powers than the Convention proposed to confer upon ours. Absolutely equal representation is given upon it to States showing an enormously greater disparity in population, and in some instances even in area, than exists between any of the various colonies here. Yet this body has stood the severest tests, and the evils anticipated here have not been found to arise from its actions.

The truth is that the position of such a body differs very materially from that of the Legislative Council of a colony. A Federal Senate, modelled upon that of the United States, would have a representative character challenging the respect even of those who are most impatient of any delay in the work of popular assemblies. Under the existing circumstances of this country, a huge territory under the control of a comparatively few separate Governments, threatened by no pressing danger from without, and already enjoying a species of union through their common connection with the mother country, the powers which all the colonies may be expected to entrust to a Federal legislature when established will be exactly commensurate with the guarantees we are prepared to give them against any undue interference with their separate interests. In judging, moreover, of those interests at the present time, we must not shut our eyes to the changes certain to result from future developments. With territories largely in excess of the average size of European kingdoms, or of the units composing the United States or Canadian Federations, the populations of our colonies are for the most part concentrated in a few localities. We, who, at the close of the nineteenth century are making provision for years to come, cannot even conceive to what extent the spread of population and the development of industrial enterprise may alter the conditions and needs of the country as a whole. Heretofore, generally speaking, the capital towns of the respective colonies have been permanent in influence, but just as Melbourne and Brisbane formerly broke away from Sydney, so in most of the colonies some change in the policy of the Government may come to be demanded, which will have to be met either by a more liberal treatment of the outlying parts or by the separation of those parts from their parent colony. The industrial progress of what are now the secondary towns, and even of


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districts where now no vestige of a town exists, will inevitably call for a fairer apportionment of the cares of Government hereafter. To such an extent have we laboured to attract all trade to the principal cities that many of the opponents of Federation think this a sufficient ground for appealing to the timidity of those whose interests lie in those cities. Such critics need to be reminded that the alternative in all such questions does not necessarily lie between Federating and remaining as we are, but possibly between Federation and ultimate separation of portions of our territory, and their erection into new colonies with ever new jealousies and further conflicts of policy.

From this point of view, the above-mentioned peculiarities in our present position are seen to have a material bearing upon the question of the distribution of powers. Where the territories of the respective parties to a Federation are comparatively small, there is a greater localisation of interests; it is much less likely that one portion of a State will have interests conflicting with those of another portion, and there is less reason for the central Government being charged with matters, which in such a case, are more purely matters of local concern. But where the territories are large, the people of the outlying parts may in some instances more naturally expect justice from a general council of the whole country, than from the Legislature of the particular colony to which they find themselves attached. If, then, they cannot have their welfare sufficiently studied by a Federal Parliament which has no interest in favouring a particular corner of the continent, they may, hereafter, insist on protecting themselves by means of Legislatures of their own.

It will be seen from such considerations as these, that in fixing the balance of power between the National and State Legislatures, it is not enough to guard with jealousy the powers which the latter now possess, unless we also look forward to those which it is desirable in the interests of all that they shall continue to possess. Our aim should be not merely to conserve the interests of the particular territory now embraced in a colony, but to endeavour to secure what will be absolutely just, in view of the future needs of every part of each of the colonies. On every view, it will be seen that the Scheme of the United States Constitution offers useful guidance. Let our Federal Legislature like them possess large powers, but powers clearly defined and ascertained. Let all the colonies have an equal voice in a Senate chosen in such a way, and invested with such authority no colony may have any ground for complaining that its own Legislature is unduly overborne by the Federal Parliament. In both these particulars the plan of the Convention Bill is entitled to commendation.

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