initiative of Mr. (now Sir Charles) Gavan Duffy, who, in 1857, induced
the Legislative Assembly to appoint a committee to consider the
advisability of federal union. Upon their recommendation that an
inter-provincial conference should be held, communications were
addressed to New South Wales, South Australia, and Tasmania, which,
though separated from the mainland of Australia, has always identified
itself closely with Australian affairs. The proposal was in each case
favourably received, as also, a little later, by Queensland, which had
been erected into a separate Province in 1859; and Tasmania actually
appointed its delegates. But there the matter was allowed to rest;
and, although occasional conferences were held at which a uniform
tariff, the immigration of the Chinese, and other subjects were
discussed, no practical steps were taken until 1883, when external
questions impressed {215} Australian statesmen with the necessity for
the creation of some body which would voice the opinions of Australia.
Germany was reputed to have designs upon New Guinea, France upon the
New Hebrides; while the latter country also gave offence by the penal
settlement in New Caledonia. In the spring of that year Sir T.
M'Ilwraith, the Premier of Queensland, which from its position has the
greatest interest in New Guinea, had hoisted the British flag on the
Island and taken formal possession of that part of it which was not
under the control of the Dutch; but his action had been disavowed by
the Imperial Government. A convention, attended by representatives
from the five Australian Provinces, Tasmania, New Zealand, and Fiji,
was accordingly held at Sydney, at which a decision was arrived at as
to the main principles which were embodied in the Federal Council Act
of 1885, the first legislative recognition of the Unity of Australia.
Under this Act it was provided that a Federal Council, containing two
representatives from a self-governing Province and one from a Crown
Colony, should come into existence as soon as four of the Australasian
Provinces had expressed their willingness to join it, and should
thenceforward hold biennial sessions. The motive which had called the
Council into existence was shown clearly in the principal power
delegated to it, that of legislating, subject to Imperial approval, in
regard to the relations of Australasia with the Islands of the {216}
Pacific. It was also authorised to deal, among other subjects, with
the fisheries in Australasian waters beyond territorial limits and
certain aspects of civil and criminal jurisdiction, upon which it could
pass enactments which would bind the Provinces represented upon it; and
with questions such as general defences, quarantine, copyright,
uniformity of weights and measures, and others which might be referred
to it by the Legislatures of two or more Provinces, and any other
matters of general Australasian interest on which the Legislatures can
legislate within their own limits, but as to which it is deemed
desirable that there should be a law of general application. Such
legislation, however, was to take effect only in the Provinces that
requested the Council to act, and in any others that might subsequently
adopt it. It will thus be seen that the measure is of a purely
permissive character, as each Province decides for itself whether it
will be represented on the Council. New South Wales, mainly under the
influence of the late Sir Henry Parkes, and New Zealand have never
taken part in the deliberations, and South Australia has only been
represented on a single occasion. The abstention of New Zealand is of
smaller importance, from her geographical position and her intention
not to identify herself at present with any scheme of Australian
federation; but the hostility of New South Wales and the apathy of
South Australia have placed great obstacles in the way of Queensland,
{217} Victoria, Western Australia, and Tasmania, which, and especially
Victoria, have attempted to turn the Council to the best account.
Other causes have combined to minimise its utility; it has neither an
Executive to carry out, nor a judiciary to enforce its decisions; it
has no control over public funds; and, as has recently been pointed
out, "it transacts its business without a Ministry or a department,
without a leader or an Opposition, without a party or a programme;
there is no necessary continuity of representation, or similarity in
the mode of appointment of representatives, or fixed area within which
its legislation has force; it is vagrant in domicile and without a roof
to shelter it, without a foot of territory to rest upon, without a ship
or a soldier to protect it, without a single man in its service, or a
shilling of its own to pay one."[1] But, in spite of these drawbacks,
the Council has done practical work: it has paved the way for a system
of national defence by the establishment of federal garrisons at King
George's Sound and Thursday Island; it has regulated the pearl-shell
and beche-de-mer fisheries on the coasts of Queensland and Western
Australia, and it has interested itself actively in the promotion of
the proposed Pacific cable. More would have been done, particularly in
the consideration of the matters referred to it by Provincial
Legislatures, had {218} it not been hoped that by the postponement of
action the Council would be enabled, through the adhesion of South
Australia and New South Wales, to legislate for the whole of Australia.
Several of the Provinces, notably Western Australia and Queensland,
which have shown little eagerness for the immediate realisation of a
closer union, believed that the Council would, by a gradual process of
development, be transformed into a Federal Parliament, and were
prepared to allow events to take their natural course; but in other
quarters a strong feeling arose, which was strengthened by the report
of Imperial officers on the condition of the Provincial Defences, that
the time had arrived when an attempt should be made to draft a Federal
Constitution Bill which should be submitted to the various Provinces,
and, if approved by them, to the Imperial Authorities. As the result
of correspondence between the Premiers, delegates from the whole of
Australasia, with the exception of Fiji, met at Melbourne in 1890, and
passed resolutions which led to the convocation at Sydney in the
following year of a constituent convention, which was attended by
Parliamentary representatives from the seven Provinces. The convention
sat for several weeks, under the presidency of Sir Henry Parkes, and
drew up a Bill "to constitute the commonwealth of Australia," which
formed the basis of the discussions at the recent Federal Convention.
{219}
The legislative powers of the Commonwealth are, under the provisions of
the Bill, vested in a Governor-General, appointed by the Queen, a
Senate, and a House of Representatives. The laws passed by the
Parliament are to be presented to the Governor-General, who may assent
to them in the Queen's name, reserve them for the signification of her
pleasure, withhold his assent, or return them to the Parliament with
any amendments that he may recommend. Laws assented to by the
Governor-General may be disallowed within two years by the Queen in
Council, and laws that have been reserved shall not come into force
unless within the same period they have received the assent of the
Queen in Council. The Members of the Convention did not deem it
necessary that any class of Bills should be reserved, but understood
that, as they proposed that the Commonwealth should be able to
legislate on several matters affecting the relations of Australia with
foreign nations, the Constitution would not be acceptable to the
Imperial Authorities unless a considerable power of intervention were
reserved to them.
The Senate is to be composed of eight members for each Province, which
is henceforth to be called a State, of whom one-half retire
triennially, directly chosen by the Houses of Parliament of the several
States for a period of six years. Senators are subject to no property
qualification, but must be of {220} the age of thirty years, have
resided for five years within the limits of the Commonwealth, be
entitled to vote for a member of the House of Representatives, and if
not British subjects by birth, have been naturalised for at least five
years before the time of their election. Bankrupts, criminals, and
Government contractors are specially disqualified. Similar provisions
and disqualifications apply to members of the House of Representatives,
except that the minimum age is reduced to twenty-one years, and that
the periods of residence and naturalisation are reduced from five years
to three. They are to be chosen, in constituencies of thirty thousand
inhabitants, by electors whose qualification shall be that prescribed
by each State as the qualification for electors of its more numerous
House of Parliament. The members of both Houses are to be paid at the
rate of L500 a year, and are precluded from sitting in a State
Parliament. The Parliament of the Commonwealth is to have authority to
deal with "external affairs and treaties," to take over the powers of
the Federal Council, which will cease to exist from the date of its
establishment, and to have the exclusive right to legislate in regard
to the affairs of the people of any race, not being Australian
aboriginals or Maoris of New Zealand, with respect to whom it is deemed
desirable to make laws not applicable to the general community; the
seat of the Federal Government and any places required {221} for
Federal purposes; and the provisional administration of any territory
surrendered by any State, and accepted by the Commonwealth, or any
territory in the Pacific placed by the Queen under the authority of and
accepted by the Commonwealth. The framers of the Constitution
doubtless had in view the Northern Territory, which, as it forms a
heavy burden upon its resources, South Australia might be glad to hand
over to the Federation. The Federal Parliament is also to deal
exclusively with the postal and telegraphic services, military and
naval defences and munitions of war, ocean beacons and lighthouses,
quarantine, and, as soon as a uniform tariff has been imposed, with
foreign and internal trade, bounties and duties of customs and excise.
In the meanwhile, the duties are to be collected by Federal officials,
but will be those that are, or may be, imposed by the Parliaments of
the several States. Upon the enactment of a uniform Federal tariff,
all such State laws will thereby be repealed and "trade and intercourse
throughout the Commonwealth, whether by means of internal carriage or
ocean navigation, shall be absolutely free." The expenditure of the
Commonwealth is to be charged to the several States in proportion to
the numbers of their people, and any surplus of revenue over
expenditure is to be returned to them in proportion to the amount of
revenue raised therein respectively, subject to certain reservations
and to the right of the Federal Parliament, after {222} the imposition
of a uniform tariff, to prescribe the method of its disposal. The
Federal revenue is to consist of customs and excise duties and of
moneys raised by any other mode or system of taxation, but so that all
such taxation shall be uniform through the Commonwealth. The Federal
Parliament may also, "with the consent of the Parliaments of all the
States, make laws for taking over and consolidating the whole or any
part of the public debt of any State or States; but so that a State
shall be liable to indemnify the Commonwealth in respect of the amount
of a debt taken over, and that the amount of interest payable in
respect of a debt shall be deducted and retained from time to time from
the share of the surplus revenue of the Commonwealth which would be
otherwise payable to the State."[2] Certain other legislative powers
are vested in the Federal Parliament, which may concurrently be
exercised by the several States, and in such cases Federal shall
supersede State legislation. All subjects not exclusively vested in
the Parliament of the Commonwealth, or withdrawn from the Parliaments
of the several States, are reserved to, and shall remain vested in, the
State Parliaments.
The authority of the Senate in regard to Money Bills formed the subject
of much discussion, and was decided by a compromise which, it was
hoped, would satisfy both those who desired to secure the {223}
financial supremacy of the House of Representatives and the inhabitants
of the smaller States, who would naturally struggle for the rights of
the Senate in which they would be on a footing of equality with their
more powerful neighbours. The views of the former were met by the
provisions that "laws appropriating any part of the public revenue, or
imposing any tax or impost, shall originate in the House of
Representatives," and that "the Senate shall have equal power with the
House of Representatives in respect to all proposed laws, except laws
imposing taxation and laws appropriating the necessary supplies for the
ordinary annual services of the Government, which the Senate may affirm
or reject, but may not amend. But the Senate may not amend any
proposed law in such a manner as to increase any proposed charge or
burden on the people." The interests of the latter were safeguarded by
the four succeeding sub-sections:
"Laws imposing taxation shall deal with the imposition of taxation only.
"Laws imposing taxation, except laws imposing duties of customs on
imports, shall deal with one subject of taxation only.
"The expenditure for services other than the ordinary annual services
of the Government shall not be authorised by the same law as that which
appropriates the supplies for such ordinary annual services, but shall
be authorised by a separate law or laws.
{224}
"In the case of a proposed law which the Senate may not amend, the
Senate may at any stage return it to the House of Representatives with
a message requesting the omission or amendment of any items or
provisions therein. And the House of Representatives may, if it thinks
fit, make such omissions or amendments, or any of them, with or without
modifications."[3]
The executive authority of the Commonwealth is to be exercised by the
Governor-General as the Queen's representative, with the aid and advice
of a Federal Executive Council. Considerable discussion took place at
the Convention as to the relations which should exist between the
Federal Executive and Legislature, some of the Representatives being in
favour of the British system, others of the direct popular election of
the head of the Government. It was finally agreed that the members of
the Council should be chosen and summoned by the Governor-General,
should hold office, during his pleasure, and should be capable of being
chosen and of sitting in either House of Parliament. They are to
execute the provisions of the Constitution and the laws of the
Commonwealth; to assume at once control of the departments of customs
and excise, posts and telegraphs, military and naval defence, ocean
lights and quarantine; and, until other provision is made by
Parliament, to appoint and remove all other officers of the Government.
{225}
The Parliament of the Commonwealth may establish a Supreme Court of
Australia, consisting of a Chief Justice and not less than four other
Justices, who shall be appointed by the Governor-General in Council,
and shall be irremovable except upon an address from both Houses of
Parliament. The Supreme Court shall be a final Court of Appeal from
any other Federal Court, which may be established by Parliament, and
from the highest Court of final resort in any State; and may be
invested by Parliament with final and conclusive jurisdiction in all
cases upon which an appeal has hitherto been allowed to the Queen in
Council, subject to the right of the Queen to grant an appeal to
herself in Council against the judgment of the Supreme Court in any
case which concerns the public interests of the Commonwealth, or of any
State, or of any other part of the British Empire. The Parliament may
also confer upon the Federal Courts, other than the Supreme Court,
jurisdiction to deal, either exclusively or concurrently with the
Courts of the States, with cases arising under the Constitution or
under any law made by the Parliament of the Commonwealth or affecting
the Representatives of Foreign Powers, and with certain other matters
including cases in which the Commonwealth is a party, or in which a
Writ of Mandamus or Prohibition is sought against an officer of the
Commonwealth.
As the powers of the State are to be substantially those which they
possess at present with the {226} exception of such as are transferred
to the Federal Legislature and Executive, it is only necessary to add
that the Governors of the States are to be appointed in the manner
which their Parliament may prescribe, but are to correspond with the
Imperial Authorities through the Governor-General: that States are not
to be subdivided nor deprived of any of their territories without the
consent of their Parliaments; and that they are forbidden explicitly to
raise or maintain any military or naval force, to coin money, or make
anything but gold and silver legal tender in payment of debts, to make
any law prohibiting the free exercise of any religion, or to make or
enforce any law abridging any privilege or immunity of citizens of
other States of the Commonwealth, or to deny to any person within their
jurisdiction the equal protection of the laws.
Finally, it is provided that any of the existing Provinces that have
not adopted the Constitution may, upon doing so, be admitted to the
Commonwealth, and that any law for the alteration of the Constitution
is not to be submitted to the Governor-General for the Royal Assent
until it has been passed by an absolute majority of both Houses of
Parliament, and has been approved by conventions of a majority of the
States representing a majority of the people of the Commonwealth.
When the Constitution Bill had been drafted, the next step should have
been its reference to the Parliaments of the Constituent Provinces; but
it was {227} not even introduced in New South Wales, Queensland,
Western Australia, or New Zealand. In Victoria it was passed by the
Assembly and forwarded to the Council, which passed it subject to
certain amendments which were never considered by the Assembly; in
South Australia it was introduced in the Assembly, and was dropped; in
Tasmania it passed the Assembly and was dropped at an early stage in
the Council. This procession of failures caused the advocates of
Federation to realise that there must be something faulty in the method
of procedure, and to ask themselves whether it was reasonable to expect
that fourteen independent Chambers, or twelve, if New Zealand be
excluded, should be able to arrive at a uniform decision on so
complicated and contentious a subject. It was felt, also, that the
Parliaments had no popular mandate to deal with the question, and that,
in the general apathy and absence of interest, the electors themselves
should be stirred up by direct participation in the movement.
Accordingly, Mr. Reid, the Premier of New South Wales, invited the
Premiers of the other Australian Provinces to meet him at Hobart in
January, 1895, taking advantage of the fact that four of them would be
there in connection with the biennial meeting of the Federal Council.
The invitation was accepted, and a new scheme was devised of which the
main principles were the popular election of delegates empowered to
meet and frame a Federal Constitution; the reference of the
Constitution {228} so framed to a plebiscite of the several electorates
and its subsequent transmission for Imperial legislation. The Premiers
of New South Wales, Victoria, South Australia, and Tasmania accepted
the proposal in its entirety; the Premier of Queensland agreed to it,
except as regards the reference of the Constitution to a plebiscite;
but the Premier of Western Australia was unable to concur with the
decision of his colleagues. Sir John Forrest did not believe that
popular election would lead to the choice of the most highly trained
jurists and financiers, who could alone frame a consistent and workable
Constitution, and he regarded as absurd the assumption that the average
elector could give an intelligent opinion upon a measure of so
complicated a character. There is much force in these objections; but
it must be remembered that the former effort failed from its
dissociation from popular impulse, and that the delegates would have
the benefit of the work of their predecessors, which they would be
bound to accept as the basis of their deliberations. As regards the
plebiscite, it cannot have been expected that the vote of the bulk of
the electorate would be more than an affirmative or negative reply upon
the broadest issue; but, assuming it to be necessary that the
Constitution Bill should in some manner or other be submitted for the
judgment of each of the Provinces, the direct reference has the merit
of being expeditious and conclusive and of avoiding the quagmire of
Parliamentary discussions.
{229}
Before proceeding to note the results of the resolutions passed at the
Premiers' Conference, it may be of interest to consider to what extent
recent events have affected the status of the Federal Council. As has
already been remarked, it has pursued a policy of self-effacement, and
in spite of the increase in its numbers, it has never appealed to the
imagination of Australians. It was undoubtedly dwarfed by comparison
with the Federal Convention, which, indeed, decreed its contingent
extinction, and it has, to some extent, been supplanted by the informal
meetings of Australian Premiers which tend to become an annual
institution. At a Conference held at Sydney in January, 1896, the
urgent necessity for Federation was again emphasised, and it was
resolved that, pending its attainment, the military laws of the
Provinces should be assimilated, and a cordite factory be established
under State supervision. Resolutions were also passed in favour of a
Federal system of quarantine, the distribution of the cost of
lighthouses on the basis of population, the extension to all coloured
races of the provisions of the Chinese Restriction Acts, and
non-participation in the Anglo-Japanese Treaty. In this manner the
Premiers, instead of referring questions to the Federal Council through
their respective legislatures, decided, after personal consultation,
upon measures which each would endeavour, in the common interest, to
pass through the Parliament of his own Province. Other interprovincial
conferences also {230} are becoming more common. The precautions to be
adopted against the tick fever were discussed at Sydney in 1896, and a
few months ago, earlier, several Ministers of Agriculture met the South
Australian Minister at Adelaide and decided upon the advisability of
uniform legislation which would promote similarity of out-put in the
products of the different Provinces, such as frozen meat, butter, wine,
and fruit, for which it was hoped to create a large market in England.
It has been argued that the growing realisation of the interdependence
of the Provinces and of the material advantages accruing from combined
action, will tend to hasten the advent of Federation.
The new proposals in that direction were favourably received, and the
Legislatures of New South Wales, Victoria, South Australia, and
Tasmania passed the so-called Australasian Federation Enabling Act, in
substantially similar form, upon the lines laid down by the Premiers.
The details of their scheme may be gathered from the principal
provisions of the Victorian Act:--
"The Convention shall consist of ten Representatives of each Colony
represented.
"The Convention shall be charged with the duty of framing for
Australasia a Federal Constitution under the Crown in the form of a
Bill for enactment by the Imperial Parliament.
"Every Member and every person eligible for Membership of either House
of Parliament shall be {231} eligible for Membership of the Convention
as a Representative of Victoria. And any one hundred or more electors
duly qualified to vote for the election of a Member of the Legislative
Assembly shall be entitled in the prescribed manner to nominate any
eligible person.
"Every person duly qualified to vote for the election of a member of
the Legislative Assembly shall be qualified and entitled to vote for
the election of Representatives of Victoria.
"The voting shall be taken throughout Victoria as one electoral
district, and every voter shall vote for the full number of
Representatives required, otherwise the vote shall be rejected as
informal.
"No person shall vote or attempt to vote more than once at the same
election of Representatives of Victoria."
(A similar provision applies to the subsequent referendum.)