John Kilcullen
Copyright (c) 2000, 2004, R.J. Kilcullen.
Each of Britain's Australian colonies was ruled at first by a Governor responsible only to the British Government. For New South Wales the British Parliament in 1823 passed an act that provided that the Governor would be advised by a Legislative Council, consisting of nominated officials. In 1843 the Council passed an act introducing what was called "representative government", including in the Council a number of elected representatives of the population of NSW. The Council was still advisory only; the Governor was still the executive government. In 1856 NSW got "responsible government", meaning that the effective head of the executive Government (no longer the Governor, but a "prime minister" or "premier") became responsible to the elected Legislative Assembly, in the sense that if the premier lost the confidence of the Assembly he was obliged to resign or recommend an election. A similar progress from autocratic rule by a Governor to representative government to responsible government took place in the other Australian colonies, and also in Canada and other parts of the British Empire. Before the American revolution the American colonies had had representative government, but the device of responsible government had not developed, and the conflicts between Governors and representative bodies were one of the causes of the revolution.
At the end of the 19th Century the British Colonies in Australia still did not form a single political entity. During the course of the 1890s they negotiated to join together into a federation. See below for the stages of the process. Various motives led to this -- for example, nationalism, a desire to abolish customs duties levied by individual colonies against goods produced by the others, and especially a desire for a more effective military defence.
Most of the British Colonies in North America, after a war of independence, had formed a federation, the United States of America. In 1867 the remaining British colonies in North America had formed a federal state, Canada. Canada's constitution was the British North America Act, an act of the British Parliament. The United States and Canadian constitutions had an influence on the formation of the federation in Australia. The Australia federation was established in 1900 by an act of the British Parliament.
At various times during the twentieth century the various parts of the British Empire became fully independent of Britain. Almost everywhere the British left behind them a federal form of government, though the "United Kingdom" itself has never been a federal state. Federalism seemed to the British, and to their colonists, the most suitable form of state in situations where there was a desire for national independence but suspicion on the part of local communities that a unitary democratic state might subordinate local interests. It was also favoured as a conservative arrangement which would check radicalism on the part of both national and subordinate governments. (See Madison, "Federalist no.10"). The British monarch is still head of state in Canada, Australia and New Zealand and head of the "Commonwealth", the loose association of countries formerly part of the British Empire. (Confusingly, "commonwealth" is also the name of the Australian federal state, the Commonwealth of Australia.)
See J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth (p. 119 ff), Macquarie University Library: KTA 1203 1901; and J.A. La Nauze, The Making of the Australian Constitution, Macquarie University Library: KTA 1205 .L3.
1890 Conference, Melbourne. At this conference representatives of the Colonial Governments agreed to get the Colonial Parliaments to appoint delegates to a Convention to draw up a Federal Constitution.
1891 Convention, Sydney. Began with the resolutions given below. Appointed a drafting committee (led by Samuel Griffith) which from time to time reported to the whole Convention. They worked from a draft put together by Andrew Inglis Clark. Clark's draft was based on the US constitution, the British North America Acts and various British acts regulating the government of the Australian colonies. (Clark's draft is printed as an appendix to J. Reynolds, "A.I. Clark's American Sympathies and his Influence on the Australian Constitution", Australian Law Journal 32 (1958), pp. 62-75.) The 1891 Convention produced a draft constitution which was the main basis of the Constitution we now have. (The 1891 draft is printed Official Records of the Debates of the Australasian Federal Convention, 1891 (Macquarie University Library: JQ 4015 .O35), pp. 943-64.)
For a while momentum was lost (for example, in NSW there was a change of Government and the new Government ). It looked as if no further action would be taken. Momentum was renewed by the "Corowa plan", according to which each of the colonial Parliaments would pass an "enabling act" authorising the following process:
another Convention (with delegates not appointed but elected) would meet to produce a draft Constitution;
the Convention would adjourn (not terminate!) to give the Parliaments time to comment on the draft;
the Convention would reconvene, consider the comments, and revise the draft;
the revised draft would then be voted on by electors in referendums to be held in each colony;
if three or more of the colonies approved the draft Constitution, then the British Parliament would be asked to enact the Constitution for a federation consisting of the colonies in which the referendum had succeeded, leaving open the possibility that the other colonies would join later.
The virtue of this plan was that it would provide legal
authorisation by the Colonial Parliaments to carry the whole
process right through to the end, and by providing for the
election of the Convention delegates and referendums it gave
more scope for public involvement.
The Corowa plan was endorsed by the colonial Premiers meeting in Hobart, 1895. The enabling Acts were passed (though the Western Australian Parliament provided not for a referendum but for approval by the Parliament).
The Convention met first in Adelaide, 1897. It was free to make a fresh start, but in fact it reworked the 1891 draft. The leading member of the committee in charge of drafting was Edmund Barton.
The Parliaments of the colonies made their comments, and the Convention reconvened in Sydney in 1897 and again in Melbourne in 1898 to consider the comments and revise the draft yet again.
The referendums provided for in the enabling acts took place in 1898 in Victoria, South Australia, Tasmania and New South Wales. The draft was endorsed by a majority of voters in all these colonies, but the NSW legislation required the endorsement of 80,000 people, which was not achieved. Without NSW the other three hesitated to go ahead.
Another Premiers' conference (1899) was held which made modifications designed to win support in NSW. Another round of referendums took place (in Victoria, South Australia, Tasmania, New South Wales, and this time also in Queensland) in which the latest version was endorsed in each colony.
This version was taken by delegates to London to request enactment by the British Parliament. The British Government negotiated some amendments to Section 74, and the Parliament at Westminster enacted the Constitution as we now have it, except for amendments made under Section 128.
That in order to establish and secure an enduring foundation for the structure of a Federal Government, the principles embodied in the Resolutions following be agreed to:--
( 1.) That the powers and privileges and territorial rights of the several existing Colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government.
(2.) That the trade and intercourse between the Federated Colonies, whether by means of land carriage or coastal navigation, shall be absolutely free.
(3.) That the power and authority to impose Customs duties shall be exclusively lodged in the Federal Government and Parliament, subject to such disposal of the revenues thencederived as shall be agreed upon.
(4.) That the Military and Naval Defence of Australia shall be entrusted to Federal Forces, under one command.
Subject to these and other necessary provisions, this Convention approves of the framing of a Federal Constitution, which shall establish, --
(1.) A Parliament, to consist of a Senate and a House of Representatives, the former consisting of an equal number of members from each Province, to be elected by a system which shall provide for the periodical retirement of one-third of the members every [left blank] years, so securing to the body itself a perpetual existence combined with definite responsibility to the electors, the latter [i.e. the House of Representatives] to be elected by districts formed on a population basis, and to possess the sole power of originating and amending all Bills appropriating revenue or imposing taxation.
(2.) A Judiciary, consisting of a Federal Supreme Court, which shall constitute a High Court of Appeal for Australia, under the direct authority of the Sovereign, whose decisions as such shall be final.
(3.) An Executive, consisting of a Governor-General, and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the House of Representatives expressed by the support of the majority.
Source: J.A. La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972)
These resolutions define the essentials of the Australian federation as it is today. Notice that the last clause provides for "responsible government".
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