question which seemed for a moment to threaten the whole scheme of
Federation. The draft Constitution which the Convention had prepared and
which the people had approved by their vote provided that questions
arising on the interpretation of the Constitution as to the respective
limits of the powers of the Commonwealth and of the States, or as to the
respective limits of the constitutional powers of any two or more
States, should be adjudicated upon by the High Court of the
Commonwealth, and that no appeal should lie from its decision to the
Queen in Council (_i.e._ to the Judicial Committee of the Privy Council
in England, which is the Supreme Court of Appeal from the British
Colonies and India), ‘unless the public interest of some part of Her
Majesty’s dominions, other than the Commonwealth or a State, are
involved.’ When the draft reached England to be embodied in a Bill, the
British Government took exception to this provision as tending to weaken
the tie between the mother country and the colonies. There were many in
England who thought that it was not in the interest of Australia herself
that she should lose, in questions which might involve political feeling
and be complicated with party issues, the benefit of having a
determination of such questions by an authority absolutely impartial and
unconnected with her domestic interests and passions. How much better
(they argued) would it have been for the United States at some critical
moments could they have had constitutional disputes adjudicated on by a
tribunal above all suspicion of sectional or party bias, since it would
have represented the pure essence of legal wisdom, an unimpeachable
devotion to legal truth!
To this the Australians replied that the experience of the United States
had shown that in constitutional questions it was sometimes right and
necessary to have regard to the actual conditions and needs of the
nation; that constitutional questions were in so far political that
where legal considerations were nearly balanced, the view ought to be
preferred which an enlightened regard for the welfare of the nation
suggested; that a Court sitting in England and knowing little of
Australia would be unable to appreciate all the bearings of a
constitutional question, and might, in taking a purely technical and
possibly too literal a view of the Constitution, give to the
Constitution a rigidity which would check its legitimate expansion and
aggravate internal strife. Australia must—so they pursued—be mistress of
her own destinies, and as it is she that had framed and procured the
enactment of this Constitution, so by her ought the responsibility to be
borne of working it on its judicial as well as its executive and
legislative side. Not only was this better for Australia herself, but it
would be more conducive to the maintenance of the connexion between the
Commonwealth and the mother country.
After some wavering, the British Government, perceiving the risk of
offending Australian sentiment, gave way. They dropped in Committee of
the House of Commons the alteration which they had introduced into the
Australian draft, substituting for it an amendment which, while slightly
varying the original terms of the draft, practically conceded the point
for which the Australian Delegates, sent to England to assist in passing
the measure, had contended. The Act as passed provides that no appeal
shall lie to the Crown in Council upon the constitutional questions
above-mentioned unless the High Court itself shall, being satisfied that
the question is one which ought to be determined by the Privy Council,
certify to that effect. In all other such cases its judgement will be
final.
Appeals to the Privy Council in questions other than constitutional will
continue to lie from the Supreme Courts of the States (with the
alternative of an appeal to the High Court) and from the High Court
itself, when special leave is given by the Privy Council. The
Commonwealth Parliament may limit the matters in which such leave may be
asked, but the laws imposing such limitations are to be reserved for the
pleasure of the Crown.
The scheme of judicature above outlined follows in the main the model
contained in the American Constitution. It does not draw the line
between State and Federal matters and courts so sharply, for appeals are
to lie from State Courts in all matters alike, and State Courts may
receive jurisdiction in Federal matters. On the other hand, it is more
conformable to principle than either the Canadian plan, which provides
no Federal Courts save the Supreme Court and gives the appointment of
all judges alike to the Dominion Government, or the Swiss plan, which
refers questions of conflict between the Nation and the Cantons, or as
to the constitutionality of Federal laws, not to the Judiciary at all,
but to the Federal Legislature. Broadly speaking, the Australian High
Court will have to fill such a place and discharge such functions as
have been filled and discharged in America by that exalted tribunal
which Chief Justice John Marshall and other great legal luminaries have
made illustrious. In working out the provisions of the Constitution by
an expansive interpretation, cautious but large-minded, it may render to
Australia services not unworthy to be compared with those which America
has gratefully recognized.
XIII. WORKING OF THE FRAME OF GOVERNMENT.
THE CABINET.
Now let us see how this Frame of Government, which I have briefly
outlined in its salient features, is intended to work.
Its essence lies in a matter which is not indicated by any express
provision, the dependence of the Executive upon the Legislature. Herein
it differs fundamentally from the American and Swiss systems. It
reproduces the English system of what is called Cabinet or Responsible
Government; that is to say, a Government in which the Executive instead
of being, as in America, an independent authority, directly created by
the people and amenable to the people only, is created by and
responsible to the Legislature. As and when the British colonies
respectively obtained self-governing institutions, each of them adopted
this scheme, since it was the one familiar to them at home: and to it
they seem all determined to adhere.
Its distinctive features are these.
The nominal head of the Executive, in Britain the Crown, in Australia
the Governor-General as representing the Crown, is permanent, and is not
responsible to the Legislature, because he acts not on his own views,
but upon the advice of his Ministers.
The Ministers are responsible to the Legislature which virtually chooses
them, and they depend upon its confidence for their continuance in
office.
The Ministers are however not wholly at the mercy of the Legislature,
because they may dissolve it, that is to say, may appeal to the people,
in the hope that the people will elect a new Legislature which will
support them. This kind of government accordingly rests on a balance of
three authorities, the Executive, the Legislature, and the People, the
people being a sort of arbiter between Ministry and Parliament. As the
Ministry can at any moment appeal to the people, the threat of appealing
puts pressure upon the Parliament, and keeps a majority cohesive. In the
existence of this power of sudden dissolution there lies a marked
difference from the American scheme, which some one has called
Astronomical, because the four years’ term of office of the Executive
and the two years’ term of the Legislature are both fixed by the earth’s
course round the sun.
I have spoken of the Legislature as the authority to which the Ministry
is responsible. But what is the Legislature? In England, although
Parliament consists of two Houses, the Minister-making power resides
solely in the House of Commons. Being elective, the House of Commons has
behind it the moral weight of the people and the prestige of many
victories. Being the holder of the purse, it has the legal machinery for
giving effect to its will, since without supplies administration cannot
be carried on. Accordingly, though the existence of two often discordant
Houses may arrest or modify legislation in Britain, it does not affect
the executive conduct of affairs, save on the rare occasions when
immediate legislation is deemed indispensable by the Executive. The same
remark applies to Canada. There also one finds two Houses, but the
Senate, being a nominated and not a representative body, holds an
entirely secondary place. The Ministry may disregard a vote of want of
confidence passed by it, just as in England they disregard an adverse
vote of the House of Lords. In Australia, however, things will be quite
different. There the Senate has been constituted as a representative
body, elected by the peoples of the States; and as the protector of the
rights and interests of the States it holds functions of the highest
importance. Its powers (save in one point to be presently mentioned) are
the same as those of the House. In whom then does the power of making
and unmaking ministries reside? Wherever one finds two assemblies, one
finds them naturally tending to differ; and this will be particularly
likely to occur where, as in Australia, they are constructed by
different modes of election. Suppose a vote of no confidence in a
particular Ministry is carried in one House and followed by a vote of
confidence passed in the other? Is the Ministry to resign because one
House will not support it? It retains the confidence of the other; and
if it does resign, and a new Ministry comes in, the House which
supported it may pass a vote of no confidence in those who have
succeeded it.
The problem is one which cannot arise either under the English or under
the American system. Not under the English, because the two Houses are
not co-ordinate, the House of Commons being much the stronger. Not under
the American, because, although the Houses are co-ordinate, neither
House has the power of displacing the President or his Ministers. It is
therefore a new problem, and one which directly results from the attempt
to combine features of both schemes, the Cabinet system of England and
the co-ordinate Senate, strong because it represents the States, which a
Federal system prescribes.
XIV. PROVISIONS AGAINST DEADLOCKS.
This, however, is only one, though perhaps the most acute, of the
difficulties that arise from the existence of two co-ordinate Houses.
Their differences upon questions of legislation are always liable to
produce deadlocks. These annoying phenomena occur in England, though
there the House of Lords, except upon Irish questions, usually gives way
(even without a dissolution of Parliament), because it is afraid of
incensing the people and thereby bringing about its own destruction if
it continues to resist the national will. In Irish questions the Upper
House has been apt to assume that the people of England and Scotland are
not sufficiently interested to resent very keenly its difference from
the Commons. In the United States there is no remedy for such deadlocks.
They have to be endured, at whatever cost. The resistance of the Senate
to various plans suggested by the House for dealing with the slavery
question may be reckoned among the causes which brought on the War of
Secession. The Australian colonies themselves have had frequent
experience of deadlocks in matters of legislation between the two
Houses, for in every colony there have been two Houses, though in every
colony it is the more popular House which has controlled the Executive.
The difficulties I have indicated were fully before the minds of the
statesmen who sat in the two Conventions. An ingenious device has been
contrived for dealing with them (sect. 57). When the House passes a law
and the Senate disagrees, the House may pass it again after three
months, and if the Senate still disagrees, the Governor-General may
thereupon dissolve both House and Senate together, unless the Parliament
is within six months of its natural end by effluxion of time. If after
such dissolution the new House again passes the measure, and the Senate
once more disagrees, the Governor may convene a joint sitting of both
Houses. If the proposed law is then passed by an absolute majority of
the whole Parliament so convened in joint sitting, it shall be taken to
have been duly passed by both Houses.
This method involves the expenditure of a good deal of time and the
worry of a double general election, one for the House and one for the
Senate. But it may prove to be the best method of solving a problem
which neither Britain nor the United States has yet attempted to solve,
and which certainly needs solution. The reader who remembers that the
numbers of the House have been fixed to be always double those of the
Senate, will now see how necessary such a provision was in order to
secure that in this final trial of strength between Senate and House the
principle of State rights and the principle of population shall each
have its due recognition. Should these two principles come into
collision, should, for instance, all the members from the four small
States be of one mind and all the members from the two large States of
another mind, the principle of population will prevail, for in the two
Houses sitting together, the large States will have sixty-one votes
(twelve senators and forty-nine representatives), whereas the small
States will have only fifty (twenty-four senators and twenty-six
representatives). Such a conjuncture may however never arise.
XV. RELATIONS OF THE TWO HOUSES.
The question remains which of the two Houses will hold the place of the
British House of Commons as determining the tenure of office by
Ministries. Upon this question light may be cast by the provisions with
regard to money bills. The Constitution enacts (sect. 53) that all bills
appropriating revenue or imposing taxation must originate in the House,
and that the Senate may not amend taxing bills, or those ‘appropriating
money for the ordinary annual services of the Government,’ though it may
return such bills to the House suggesting certain amendments in them.
The Senate may however reject such bills. As this scheme, which somewhat
resembles that of the American Constitution[228], itself suggested by
the practice of England, seems to throw upon the House the primary
function of providing money for the public service, and thus the primary
control of the national exchequer, it would seem that Ministers, unable
without money to carry on that service, must stand or fall by a vote of
the House and not by a vote of the Senate. Yet the Senate, though it
cannot take the first steps for granting money, can withhold money; and
if it does so in order to get rid of a Ministry it dislikes, nothing
short of the deadlock provision above described can be invoked. Nor can
the expedient of mixing up a number of different taxing provisions in
one Bill, or inserting other matter in appropriation Bills (‘tacking’),
be resorted to, for these are expressly prohibited by the Constitution
(sectt. 54, 55). Possibly in practice the Houses will frequently agree
to let the accustomed services of the year be provided for without much
controversy, and will reserve their serious conflicts for new proposals
regarding taxation or appropriation.
-----
Footnote 228:
In the U.S.A., however, the Senate may and does amend both
revenue-raising and appropriation bills, and indeed frequently
prevails against the House in the quarrels which arise over these
matters.
-----
Australians evidently expect that the usage hitherto prevailing in all
the Colonies of letting the Ministry be installed or ejected by the
larger House will be followed. Nevertheless the relations of the
Commonwealth Houses are so novel and peculiar, that the experience of
the new Government in working them out will deserve to be watched with
the closest attention by all students of politics. Englishmen in
particular have good reason for doing so, because England, when she has
substituted a representative Second Chamber for her present
theoretically indefensible House of Lords, will have to devise some
means for avoiding or solving deadlocks between such a Chamber and the
House of Commons.
Some high Australian authorities have appeared to doubt whether two
co-ordinate Houses can be made to work along with Cabinet Government.
They observe that although there may be sometimes a willingness to make
compromises for the sake of the public service, there is also in all
governments, and certainly not least in those of the United States and
the British Colonies, a tendency to press every legal right to its
furthest limit, even if the machine should be stopped thereby. Were such
stoppages to become frequent, Australia might, they think, be driven to
amend her Constitution by so far disjoining the Executive from the
Legislature as to give it something of the permanence it enjoys in
America and Switzerland[229].
-----
Footnote 229:
It was suggested in the Convention by Mr. Playford (then Prime
Minister of South Australia) that the two Houses sitting together
might appoint the Executive Ministry, but this plan deviated too far
from British Colonial practice to find acceptance. A similar
suggestion was made by Sir John Cockburn in the Sydney Convention in
1891. See his speech in an interesting volume published by him
entitled _Australian Federation_ (p. 139).
-----
The relations of the Senate to the House may largely depend on factors
still undetermined. One of these is the growth of population. Should the
small Colonies grow rapidly, their representation in the House would
before long be fairly proportionate to that which they enjoy in the
Senate, so that the balance of parties might, so far as the size of
States is concerned, tend to be nearly the same in both Houses. Another
is the character of the controversies which will arise. These may not be
such as to set the small States against the large ones, and the three
party organizations, which are already strong, though they possess no
such Machine System as America enjoys, may find their support pretty
equally in all or most of the States, so that the balance of parties may
in practice be found to differ but little in the Senate from what it is
in the House. Thus these particular wheels or shafts of the
constitutional machine, which are deemed less able than others to bear a
severe strain, may not for a long while to come have any severe strain
thrown upon them.
Another thing which may affect the relations of the two Houses is the
comparative attractions which each will have for high political
capacity. In the United States the Senate became, within thirty years
from the establishment of the Constitution, an assembly much stronger,
through the eminence of its members, than was the House of
Representatives. As its term of membership was longer (six years against
two years), and as it had certain quasi-executive functions in connexion
with foreign relations and appointments, men of ability preferred it to
the House, and the House constantly saw its best talent drawn off to its
rival. The Senate has to-day no such intellectual ascendency as it had
then, but capable men still migrate to it when they can from the House
of Representatives. If the House establishes in Australia, as it will
apparently do, its sole right to make and unmake Ministries, it will be
the more tempting field for ambition: yet something will depend upon the
amount of genius and character which the Senate attracts, for the
presence of these in abundant measure will give it weight with the
nation.
It has been suggested in Australia that the Senate with its thirty-six
members is too small. The Senate of the United States however began with
twenty-six; and it has been a great advantage to that body that its
original numbers were small, for traditions more dignified than those of
the tumultuous House were formed, and a somewhat stronger sense of
personal responsibility was developed just because the individual was
not lost in a crowd.
XVI. MISCELLANEOUS PROVISIONS.
Questions of trade and finance fill a chapter of the Constitution
(sectt. 81-105); and it was indeed these questions, next to the issue
between the large and the small States, that gave most trouble to those
who framed the instrument. It is provided that the collection and
control of all duties of customs and excise shall pass to the
Commonwealth, but that not more than one-fourth thereof shall, for ten
years at least, be retained by the Commonwealth, the other three-fourths
being paid over to the several States, or applied to payment of the
interest on their respective debts, should these debts be assumed by the
Commonwealth. This arrangement was deemed needful to supply the States
with funds for defraying their administrative expenses and the interest
on their debts, seeing that the chief part of their revenue arose from
customs and excise, the five which prepared the Constitution, except New
South Wales, having adopted a protective policy. Bounties may be given
either by the Commonwealth, or by the States with its consent. There are
provisions regarding the collection of the customs, the control of
railways and settlement of railway rates, the use of rivers for
irrigation and water storage, and the State debts, but as these are
largely temporary, and have little special interest for the student of
constitutions, important as they are to Australian industries, I mention
them only to show how elaborately the scheme of union has been worked
out, and on how many perplexing topics, settled provisionally by the
Constitution, the Commonwealth Parliament will have to legislate.
The question of the spot where the capital should be placed gave rise,
as had happened in the United States and in Canada, to some controversy.
It was adjusted by providing that the seat of Federal government should
be in the colony of New South Wales, but at least 100 miles from Sydney.
Here an area is to be set apart of not less than 100 square miles, which
shall be under the jurisdiction of the Commonwealth, as the District of
Columbia is under the authority of the National Government in the United
States: and here a stately city will doubtless in time spring up.
Power is taken to admit new States, whether formed out of existing
States or not, upon any terms and conditions (_e.g._ as to number of
Senators) which the Parliament may fix, but if the new State is formed
out of an old one, only with the latter’s consent. The Parliament has
also full power to accept and provide for the administration of any
territory transferred to it by the Crown, so that no constitutional
questions can arise resembling that which has occupied American lawyers
since the annexation of Puerto Rico.
XVII. AMENDMENT OF THE CONSTITUTION.
Last of all we come to the mode of amending the Constitution, a mode
easier to apply than that prescribed for the United States, but showing
the influence to some extent of the American though more largely of the
Swiss model in its reference to the popular vote.
Every law proposing to alter the Constitution must be passed by an
absolute majority of each House, and thereupon (after two but before six
months) be submitted to the voters of every State. If in a majority of
States a majority of the electors voting approve the proposal, and if
these State majorities constitute a majority of all the electors voting
over the whole Commonwealth, the amendment is passed, and is then to be
presented to the Crown for assent. Should the two Houses differ, one
passing the proposed law and the other rejecting it (or passing it with
an amendment which the first-mentioned House rejects), the House which
approves the proposal may again pass it, and if the dissenting House
again dissents, the amendment may be submitted to the people as if both
Houses had passed it. The decision of the people is final. To meet the
fact that the suffrage is not in all the States confined to men, it is
further provided that, in any State wherein all adults are entitled to
vote, only one half of the vote shall be counted[230].
-----
Footnote 230:
But ‘no alteration diminishing the proportionate representation of any
State in either House of the Parliament, or the minimum number of
representatives of a State in the House of Representatives, or
increasing, diminishing or otherwise altering the limits of the State,
shall become law unless the majority of the electors voting in that
State approve the proposed law’ (sect. 128).
-----
Thus the requirements for the passing of an Amendment are:—