Lecture 2: Becoming One People

Sunday 26 November 2000 5:00PM
Part of The Rule of Law and the Constitution

The second of this year's six-part Boyer Lecture series, The Rule of Law and the Constitution, by the Chief Justice of Australia, the Honourable Murray Gleeson, AC. In the context of Australia's celebration of the Centenary of Federation next year, Chief Justice Gleeson offers his thoughts on our Constitution, the rich history of law, our rights and the importance of the court's independence. In this second lecture, Becoming One People, Chief Justice Gleeson examines the challenges faced by the men who framed our Constitution.


Becoming One People 1

On 5 July 2000, the governments of Australia and the United Kingdom marked the centenary of the passage through the Westminster Parliament of the legislation giving formal effect to the Constitution that established the Australian Federation and set out the terms and conditions on which the people of the formerly self-governing colonies agreed to form a federal union. The legislation was proclaimed to commence on 1 January 1901.

The fact that our history has been relatively free of climactic changes of the kind that have shaken other nations is emphasised by the contrast between the event that was celebrated in Australia and in London on 5 July 2000, and the events that are marked each year in the United States on 4 July, or in France on 14 July. Our Constitution was established by peaceful development, not by war or revolution. The agreement of the people of a number of separate, self-governing colonies to join in a federal union created a nation. Making that agreement required determination, patience, vision, and considerable political and legal skills.

The works of historians are the most comprehensive and accessible source of information about the movement towards federation.2 However, the writings of people who participated in, or were contemporary observers of, the movement contain valuable, and occasionally surprising, insights. In 1995, Alfred Deakin's contemporary notes, records and observations were published in a book entitled And Be One People. Early legal commentators on the Constitution made frequent references to aspects of the historical context, which throw light on the meaning of the text. Quick and Garran's Annotated Australian Constitution, published in 1901, contains many useful references to what was then the recent history of the federal movement, as does Professor Harrison Moore's work on the Constitution.3 A book, long since out of print, written by a Victorian, H. G. Turner, and published in 1911, reviewed the first ten years of the Federation, and identified the issues that were regarded as most significant at the time.4

From as early as 1846 there had been consideration of some kind of union between the Australian colonies as they progressed towards self-government.

A number of forces drove the federation movement. One of the most important was defence and national security.
Writing in 1901, Quick and Garran said:

"The great effort at Federation which led to the framing of the Commonwealth Bill of 1891 had for its immediate stimulus the recognised need for a national system of defence."5

They also wrote:

"But whilst the development of intercolonial relations was deepening the conviction that union was needed, the real motive power-the stimulus to an active public interest-came from outside . . . The external need of union was brought home to all the colonies by the increased activity of foreign Powers in the Pacific. In 1883 rumours became current of intended annexations by France and Germany. The Germans were credited with designs in New Guinea . . . The French, moreover, were openly coveting the New Hebrides, and were reported to be arranging to transport to New Caledonia a larger number of . . . habitual criminals.

In this emergency the colonies found that disunion hampered them in making proper representations to the Imperial Government, and weakened the effect of what representations they made".6

Alfred Deakin in his writings stressed the importance of national security and gave an interesting insight into the alarm with which the colony of Victoria viewed French activity in the South Pacific.7 There was even contemplation of the possibility of armed conflict, with Victoria doubtless counting on the support of Britain.
Professor Harrison Moore wrote soon after Federation:

"In 1864 France sent her first consignment of criminals to New Caledonia; and Australia, which in the eastern Colonies had long got rid of transportation, saw the last arrival of convicts in the West, in 1867. The Colonies were not disposed to view with equanimity the establishment of the hated thing so near their shores . . . There was reason to believe that France, anxious to increase her possessions and extend her system, intended to annex the New Hebrides . . . An agreement in 1878 between England and France that neither should annex the islands did not altogether allay apprehension, and the designs of France have always been and are now regarded with suspicion in Australia."8

The preamble to the Constitution recites that the people of the colonies had agreed to unite in an indissoluble federal union under the Crown. Those words "under the Crown" were, in the context of the time, of great significance in relation to the defence and security of the uniting colonies. They meant, amongst other things, "under the protection of the British Empire" which, in 1900, was at its zenith. The population of Australia at Federation was less than four million,9 and the Australian colonists largely regarded themselves as British. Most of the people who attended the conventions that framed the Constitution had either been born in the United Kingdom or had parents who had been born there. Many of the colonists saw Australia as an isolated outpost of European settlement, surrounded by foreign powers intent on expanding their own possessions, and with interests potentially hostile to those of Australia. To them, their relationship with the Crown and the British Empire was central to their security. People may now draw different conclusions as to the constitutional significance of the changes that have occurred since then. However, the historical fact cannot be ignored. It helps to explain why, although there was some republican sentiment in 1900, it was not a serious political force.

One of the best practical tests of what was uppermost in the minds of those who led the movement towards Federation is to look at the business to which the newly constituted Federal Parliament first turned its attention. Leaving to one side administrative arrangements, the principal items of legislation enacted during the first session of the new Parliament concerned immigration and taxation.10 In no area of public policy has there been a greater change over the century of Federation than in relation to immigration. Our major political parties now subscribe to a policy of multiculturalism. Successive waves of immigration since World War II have transformed us into a multiracial society. One hundred years ago, however, the policy of almost all of our political leaders, and of the major political groupings, was radically different. So strong was their commitment to what was called the White Australia Policy that they were willing, in their determination to implement it, to face up to the displeasure of the Imperial Government, for whom it was a considerable embarrassment. Some nations that were important components of the British Empire, or trading partners of Britain, were offended by the policy.11 The Immigration Restriction Act and the Pacific Islands Laborers Act of 1901 were among the earliest pieces of national legislation.

A striking illustration of the importance attached to immigration restriction is to be seen in the means by which it was implemented.12 The Minister for Customs, who was in charge of decisions about who could or could not enter the country, was empowered to require potential immigrants to take a language test-in any language of the Minister's choice. By that means people regarded as undesirable could be excluded. The following account of the practical administration of the law was given in 1911:

"The immense power thus conferred on the Minister nominally, but really exercised by the Customs House officer, produced some curious results. In November 1903, the second mate of a German sailing ship, who had been punished for smuggling in New South Wales, was called upon to undergo the language test. He had received a university education in Germany, and spoke English, German and French. But in view of his conviction, the Customs House officer considered him an undesirable immigrant, and gave him the test in Greek. Failing in this, he was charged with being a prohibited immigrant found within the Commonwealth, and sentenced to six months' imprisonment."13

The shift in immigration policy is only one of a number of examples of changes in values and circumstances that have a bearing upon provisions that were made, or not made, in the Constitution. The prevailing attitudes and circumstances affecting matters of race were reflected in s 51 (xxvi) of the Constitution, which empowers the Federal Parliament to make laws for the people of any race for whom it is deemed necessary to make laws. There is a contentious legal issue as to the extent to which the meaning of that power ought now to be regarded as controlled or influenced by what we know of its origins. But as to the historical facts relating to those origins, uncongenial though they may be to modern Australians, there is no doubt.

It would be inappropriate for us to slip into an assumption of moral superiority. When we consider the values of the framers of the Constitution, we need to remember that between us and them there are two world wars and a Cold War, the Great Depression, the dismemberment of the British Empire, the rise and fall of threatening ideologies, and extensive changes in social and economic conditions within Australia and in our relations with the rest of the world. The surprising thing is not that some provisions of the Constitution are outdated, but that so much of it has endured so successfully.

The second major item of legislative business that occupied the Parliament immediately was the Customs Tariff Act, and related legislation, including the Customs Act, the Distillation Act, and the Excise Acts. The need for a national fiscal policy was one of the major forces behind the federal movements. Fiscal policy was one of the most contentious issues dividing the colonies-and politicians-in the late nineteenth century and in the early days of the Federation. Some people saw the new Commonwealth Government as primarily a revenue-gathering authority with otherwise relatively limited functions and a surplus of revenue over expenditure, which would be divided amongst the States. It was said at the time that the extra cost entailed in having a Commonwealth Government was likely to be of the order of £300,000 per annum.14 By 1910, this figure had increased to £615,000.15 The subject of taxation provides another example of the way economic issues and policies have changed over the century since Federation. It is also an example of the way in which the concerns of the framers of the Constitution-concerns which in many respects have been overtaken by later events and by altered circumstances-were reflected in Constitutional provisions that have not always been easy to live with. Section 90 of the Constitution provides that, on the imposition of uniform duties of customs, the power of the Federal Parliament to impose duties of customs and excise was to become exclusive of the power of the States. The Commonwealth and the States spent a good part of the twentieth century arguing about what constituted a duty of excise.16 What has been described as vertical fiscal imbalance between the Commonwealth and the States is far removed from what was envisaged in 1901.

This is one of the intractable problems of a written Constitution. It is designed and interpreted by people who know they cannot foresee all the changes in circumstances that will affect its practical operation. It is meant to last far into the future; and it is meant to be difficult to change. Insofar as it is expressed to reflect the values of its framers, or insofar as it is interpreted to reflect the values of its interpreters, those values, at least in some respects, are certain to be different from those of future generations. This makes it important to distinguish between values and fashions. Some values are enduring, and others change over time. Fashions alter rapidly. A constitution in some respects necessarily reflects the values of its time, and the legal capacity to interpret and apply it in a manner reflecting changed values may depend upon the flexibility of its language. But it can never be interpreted and applied according to fashion. Acts of Parliament may sometimes reflect a passing trend, but they are relatively easy to change. A Constitution is an instrument of a different order.

The framing of the Commonwealth Constitution was substantially the work of two Conventions, the first held in 1891 and the second held in 1897 and 1898. The 1891 Convention, held in Sydney, was a meeting of delegates appointed by the colonial Parliaments. Sir Henry Parkes, the Premier of New South Wales, presided. He had made a speech at Tenterfield in 1889 that was the catalyst for the Convention. Sir Samuel Griffith described him as the "immediate author" of the movement that culminated in the Convention.17 Griffith, who was in 1891 Premier of Queensland, and who soon afterwards became Chief Justice of the Supreme Court of Queensland, and then, in 1903, the first Chief Justice of the High Court of Australia, together with Mr Andrew Inglis Clark, a distinguished Tasmanian lawyer, and Mr Charles Kingston, a lawyer who was then Leader of the Opposition in South Australia, played a major part in the drafting of a Bill for a Constitution, which was approved by the 1891 Convention. Many aspects of that Bill were retained in the Bill that emerged from the later Convention.

The work of the 1891 Convention was in danger of coming to nothing. However, in 1893 a conference at Corowa developed a plan for a process by which elected representatives of the people, rather than government appointees, would carry the federation movement forward. Intra- and inter-colonial politics complicated the attitudes of some leading parliamentary figures but, according to Deakin's account of events, the politicians were ultimately incapable of resisting the popular pressure for change.

In 1895 and 1896 the colonial parliaments agreed to legislate for a convention of delegates elected by popular vote. The Convention was held in Adelaide, Sydney and Melbourne, in 1897 and 1898. By that time, Griffith was out of politics, and Queensland was not represented at the Convention. Leading figures at the Convention included Edmund Barton, who was to become the first Prime Minister of Australia, and later, in 1903, a member of the High Court; Alfred Deakin, who was to be Attorney General of the Commonwealth, and later Prime Minister; Charles Kingston, then Premier of South Australia; Richard O'Connor, then Solicitor-General of New South Wales; Isaac Isaacs; and H. B. Higgins. The last three were also to become members of the High Court.

Subject to one significant qualification, the document produced at the 1897-98 Convention became the Commonwealth Constitution. The process involved the combined expressions of the will of the people of the uniting colonies, the parliaments of those colonies, and the parliament of the United Kingdom. The draft Constitution was first put to popular vote at a referendum in each colony. A first referendum in New South Wales did not obtain the approval of the required majority. Finally, in 1899, the draft Constitution was approved by referendum in each of New South Wales, Tasmania, Victoria and Queensland. Western Australia, which was at the time undergoing changes in its own system of government, voted to join the Federation in 1900. New Zealand, which is referred to in the Constitution as a possible member of the Federation, and which was represented at the 1891 Convention, never joined.

The interests and opinions of those whose agreement to federation was necessary conflicted in many respects. The final agreement represented compromises on major issues. Deakin, who often referred to himself in the third person, wrote this:

"Throughout the 1890s Deakin lived a life of devotion to the federal cause. The making of nationhood in a Commonwealth of Australia became for him a sacred duty that he served as advocate, as delegate to the conventions of 1891 and 1897-98 that drafted its constitution, as campaigner in the referenda for its adoption, and then finally as a representative of the colonies during the final negotiations in London with the imperial government, for its enactment during 1900. He made both personal sacrifices and public compromises to secure the federal compact. He declined further public office in his colony. He deliberately subordinated himself to Edmund Barton, the leading federationist in New South Wales, to avoid that colony's suspicion of the motives of his own. He was unhappy with the extent of the concessions that had to be made to the outlying states, and with the powers given to the states' upper house, the Senate. He thought the graft of federalism onto responsible government was fraught with future difficulties."18

It will be necessary to return later to the revealing phrase that Deakin used to describe the Senate, which he called the "states' upper house", referring to its powers in the context of the concessions that had to be made by Victoria and New South Wales to the other, less populous, colonies as the price of their co-operation.

Of the issues that divided the delegates at the constitutional Conventions, and over which they laboured to reach agreement, none was more complex and divisive than that of the relationship between the two chambers of the new Federal Parliament: the Senate, which was seen by the founders as representing the interests of the States, and the House of Representatives, which was to represent the people of the new Commonwealth. One of the most elaborate and arduously negotiated provisions of the Constitution was s 57, which sets out the procedures to be followed in the event of disagreement between the two Houses of the Federal Parliament.

The amount of negotiation and compromise required for the formulation of the Constitution is easily overlooked by subsequent generations, which have a tendency to take for granted most aspects of their inheritance. An appreciation of the skill and effort involved is vital to an understanding of the work of the founders. It is also important to an understanding of the sensitivities involved in the next stage of the process, which created a tense confrontation between the Australian supporters of the draft Constitution and the Imperial Government at Westminster. The confrontation concerned the role of the new High Court of Australia, and during it the supporters of the draft Constitution found their position undermined by continuing divisions of opinion among the politicians and lawyers of the Australian colonies about whether or not to retain appeals to the Privy Council.

For the Constitution to have formal legal effect required legislation by the United Kingdom Parliament.
Each uniting colony sent a delegate to London. They were instructed to secure the passage of the Constitution Bill without amendment of any kind.19 The reason for that instruction is obvious. Many provisions of the draft Constitution were the result of compromise. Alteration of any one such provision could unravel the entire agreement. The colonial parliaments had put the Bill to the popular vote as a whole. Where would it leave the Australian public if the Imperial Parliament varied the agreement they had approved? Barton represented New South Wales, Deakin represented Victoria, Kingston represented South Australia, Fysh represented Tasmania, and Dickson represented Queensland. S. H. Parker represented Western Australia, which was negotiating about the terms upon which it might later join the union.

In London, the Secretary of State for the Colonies, Joseph Chamberlain, raised a number of objections to the draft Constitution presented by the colonies. He gave way upon almost all of them, but upon one the delegates met firm resistance. The draft Constitution required the new Commonwealth Parliament to create what it referred to as a Federal Supreme Court, to be called the High Court of Australia. The jurisdiction of the High Court was to include hearing appeals from the Supreme Courts of the various States. At the time of Federation, appeals from the Supreme Courts of the colonies went to the Privy Council in London. It was envisaged that appeals would also lie from the High Court to the Privy Council. However, the draft Constitution provided, in effect, that there would be no appeals to the Privy Council on constitutional matters. On that subject, the High Court was to have the final say. It was to be the ultimate interpreter of the Constitution.

Joseph Chamberlain was having none of that. And he was supported by some powerful commercial interests and legal opinion in Australia. The legal opinion included that of Sir Samuel Griffith, then Chief Justice of Queensland, and Sir Samuel Way, Chief Justice of South Australia. The manner in which those two Chief Justices, to the great resentment of the colonial delegates in London, exercised their influence in favour of full rights of appeal to the Privy Council, is a subject worthy of its own chapter in the history of federation.

Finally, a compromise was reached, with which Chamberlain and the delegates were satisfied. Constitutional appeals to the Privy Council were, in practical effect, prohibited, not in respect of all constitutional matters, but in terms of constitutional disputes concerning the limits of the respective powers of the Federal Parliament, and the parliaments of the States; that is to say, in respect of core federal issues. It was not until the 1980s that the capacity of the Privy Council to hear Australian appeals was completely removed. Only then did Australian judges constitute the nation's ultimate court of appeal in every respect.

An account of the process by which the people of the colonies agreed to unite in a federal union and worked out the terms of their unification cannot convey a proper understanding of the scale of their achievement without an examination of the most important matters necessary for acceptance by them all. It was not simply a question of deciding to form a union. A federation requires formal written agreement upon the terms of a constitution. Important issues of principle had to be settled, and the settlement had to be expressed in a legal form that would constitute an instrument of government. As has been noted, it was to endure into a future that was certain to be different in many respects from the context in which it was being written.

The next two chapters will examine some of the terms upon which the people of Australia agreed to unite. A consideration of some of the issues it was necessary for them to agree on will demonstrate what an achievement our Constitution represents on the part of the nation-builders of a century ago. Some of the issues debated at the Conventions included the division of legislative powers between the Federal and State Parliaments; the allocation of revenue-raising functions; the financial arrangements between the Commonwealth and the States; the manner of representation of the States, especially the smaller States, in the new Commonwealth Parliament; the responsibility of the executive government to the Commonwealth Parliament; the nature and function of the federal judiciary; and the location of the seat of the new Federal Government. On these and other issues the interests of the colonies were often at odds, and required compromise. Many of the delegates were amongst the leading lawyers of the day. It goes without saying that they disagreed amongst themselves about the best means of giving legal effect to the principles that emerged from such compromise! The Commonwealth Constitution was not drafted by civil servants in London, and presented to the colonies on the basis that they could take it or leave it. Its terms were hammered out in Australia in a process of public debate, and political and legal negotiation, by the leading figures of the day.

Securing the new Constitution was a close run thing. There was opposition not only from those who did not want federation, but also from those who thought that what was proposed did not give enough power to the central government.

On 14 September 1900, Alfred Deakin wrote:

"All History takes on the appearance of inevitableness after the event. Looking backward the future will be tempted to say that Australian Union was Australia's destiny from the first and nothing could have prevented its consummation. But if this be true, it is certainly not true of its present accomplishment, whatever might have resulted in later times . . . The fortunes of Federalism have visibly trembled in the balance during the past ten years and have from the first moment to the last been subject to endless unforeseen and unpreventable interruptions, any one of which might indefinitely have postponed its triumph . . . Any one of a thousand minor incidents might have deferred it for years or generations. To those who watched its inner workings, followed its fortunes as if their own, and lived the life of devotion to it day by day, its actual accomplishment must always appear to have been secured by a series of miracles."20

1. In 1995 Melbourne University Press published a collection of Alfred Deakin's writings on the federation movement under the title 'And Be One People': Alfred Deakin's Federal story. The title came from the words of a poem quoted by Deakin in his speech to the Australian Natives Association at Bendigo on 15 March 1898.
2. For example, J. A. La Nauze, The Making of the Australian Constitution, Melbourne University Press, Melbourne, 1972; Helen Irving,To Constitute a Nation, Cambridge University Press, Melbourne, 1997; Irving (ed.), The Centenary Companion to Australian Federation, 1999.
3. Sir Harrison Moore, The Constitution of the Commonwealth of Australia, 1911 and 1997. 4. Henry Gyles Turner, The First Decade of the Australian Commonwealth, 1911 and 1995. 5. Sir John Quick and Sir Robert Garran, Annotated Australian Constitution, 1901, p. 115. 6. Ibid., p. 110. 7. 'And Be One People', op. cit., p. 11. 8. Moore, op. cit., p. 29. 9. The Australian Encyclopaedia, The Australian Geographic Society, Sydney, 1988, p. 2349. 10. See Turner, op. cit., pp. 25-36. 11. Ibid., p. 28. 12. Ibid., p. 28-29. 13. Ibid., p. 29.
14. Ibid., p. 5.
15. Ibid.
16. See Ha v New South Wales (1987) 189 CLR 465. 17. ,Official Record of the Debates of the Australian Federal Convention Sydney, 2 March 1891, p. 4. 18. 'And Be One people', op. cit., p. xiii. 19. Ibid.,p. 108. 20. Ibid.,pp. 172-73.


Chief Justice Murray Gleeson