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The Australian Nation

Constitution making

When the political leaders of the colonies decided they wanted to unite, they had a number of constitutional options to choose from. They could disband the colonial governments and create a unified state, a single, supreme (or sovereign) Australian government which might then give some of its powers to local or regional bodies. This is how Britain was governed. Almost no one was in favour of this. The colonists were too attached to their own colonies.

At the other extreme, the colonies could retain all their powers (and sovereignty) and create a coordinating body to do the bare minimum of national tasks, such as defence. A few favoured this and it sometimes seemed a surer way to proceed than more ambitious schemes. Between the two extremes there were any number of alternatives.
What kind of union?

Very quickly at the 1891 convention the founders decided on the United States scheme, which was not a compromise between the extremes, but a combination of them. The national government was sovereign in some matters and the States were sovereign in other matters. This is the modern system of federation that the United States invented. It was a mind-blowing invention because until then everyone thought sovereignty had to be single, that it could not be divided. Actually in the United States sovereignty was single and divided. The people were sovereign and they allocated one part of their sovereignty to the States and another to the national government.
The US scheme

The Australian founders also decided to accept the United States way of dividing power between the two levels of government: the subjects on which the national parliament could pass laws were listed. All other subjects remained with the States, which is what they intended to call the colonies. (You can see the list of federal powers at sections 51 and 52 of the constitution.) Most of the list was readily agreed on. Old age pensions and the settlement of interstate industrial disputes only just made it at the last minute during the second convention of 1897–8.
Federal powers

The copying continued. In 1891 the Australians decided to put together their national parliament in the same way as the United States Congress. There would be two houses with the American names, the House of Representatives and the Senate. The House of Representatives would be elected by the people (the men, that is, who already had the vote for the colonial parliaments). The number of members elected in each State would depend on its population. So this house would be dominated by the representatives from the two large States, New South Wales and Victoria. The Senate would have the same number of members from each State and would be elected by the State parliaments. So it would be dominated by the smaller States. To become law a measure had to pass both houses so that it would have the approval of the people and of the States.
Senate and House of Representatives

The trouble with the copying was that the Australians had no use for one part of the American model: the election of a president. They wanted to stick with the British or Westminster system of responsible government which was used in the colonies. The premier and ministers were members of parliament, not elected separately. This did not make them think again and develop a totally new Australian design. They would patch up the American model; they would be improvisers rather than inventors.
Responsible government

The American founders regarded the separate election of the president as of the utmost importance. Under the influence of Montesquieu, one of the French Enlightenment thinkers, they believed that liberty was only safe if the three elements in government were separate. This is the doctrine of the separation of powers. Law making (done by the legislature) had to be separate from the administration of the laws (the executive) and that had to be separate from the courts which decided whether the law was being followed (the judiciary). So the head of the American executive (the president) was not a member of the legislature (the Congress). The president was elected separately and he chose ministers who were not members of Congress.
Separation of powers in US

The American founders believed all governments tended to threaten liberty. Liberty appeared to be safe only in small societies. In forming a government covering all the American States, they were taking a great risk. It might become as tyrannical as the British government had been towards them.

To avoid this danger, power must be dispersed. No one group or individual could then capture all the centres of power and each power centre would keep the others in check. So power was dispersed between the national government and the States, between the legislature, the executive and the judiciary, and within the legislature between the House of Representatives and the Senate. Even with all these precautions, the founders struggled to get their constitution approved. Before they could succeed, they had to promise that as soon as it came into operation an amendment would be passed providing for a bill of rights. This would guarantee the rights and freedoms of citizens.

A few of the Australian founders worried that the national government might become too large or too expensive, but no one feared that it would become tyrannical. It was to be British after all and the British system of government had preserved freedom for over two hundred years. They were not nearly as concerned with the separation of powers as the Americans. They knew judges must be independent and they provided for a separate and independent High Court, but they were happy to mix the executive and legislature together. Placing the government in the parliament was not a danger to liberty but a protection of it.
Australia places government in parliament

The ministers were responsible to parliament; if ever they threatened citizens’ rights, the parliament elected by the people would control them. They saw no need for a bill of rights. (The Americans feared that a government in the parliament might control the parliament instead of being controlled by it.)
No bill of rights

The problem of applying the Westminster system to the American model was that if ministers were responsible to the House of Representatives, it would become a more powerful house than the Senate. It would determine who would be the government. The careful balance of one house representing the people and the other the States would be upset. You can see why it was the delegates from the small States who were most interested in following the American model completely or making some changes to the British one. Their nightmare was that the ministers would come only from New South Wales and Victoria. But from the small States there were also delegates who wanted to keep the British system. That’s what the majority of delegates wanted. The 1891 draft constitution allowed for it, though it did not insist on it and so left open the possibility that an alternative system might develop. The 1897–8 convention adopted the British system.
Problems of the Westminster system

The essential business of government is raising money by taxation and spending it. By convention in the British system, the upper house did not interfere in these matters. They were the business of the people’s representatives. But if the Senate were denied the right to interfere in taxation and spending, it would be weakened still further. The delegates of the smaller States were much more concerned about this. A compromise was reached: the Senate could vote against these measures, but it could not amend them. It could only suggest amendments. This compromise was blown up at the 1897–8 convention and then patiently put together again. It explains why today a government which does not control the Senate can still pass its budget measures – unless the Senate decides to throw everything into confusion and reject the budget outright.
Senate can reject but not amend the budget

The 1891 constitution was criticised for not enshrining the Westminster system and chiefly for not being democratic enough. In the 1890s, the decade of constitution making, support for democracy strengthened. The colonial constitutions were altered to stop property holders getting a vote in each electorate where they held property and attacks were mounted on the powers of upper houses. Support grew for allowing voters to suggest new laws and vote directly on them (the initiative and referendum).
Democratic demands

Constitution
In New South Wales and Victoria many claimed the constitution was undemocratic because it gave the same number of senators to large and small States: this leaflet produced for the 1898 referendum campaign was designed to override that argument.

Edward Dowling Papers, National Library of Australia

The 1897–8 convention had a much higher proportion of radical liberals and democrats among the delegates than the 1891 convention. The delegates had been directly elected by the people, which was in itself a remarkable democratic measure. The new Labor Party sent only one delegate to the convention, but it had a great influence on it. It was the fiercest critic of the constitution as undemocratic and, unless things were changed, Labor’s influence would make it difficult for the Yes case to be won at the referendum.

The most spectacular change of the decade was the granting of votes to women in South Australia in 1894. This encouraged women in other colonies to press on with their campaign to win the vote. In South Australia Catherine Helen Spence, one of the great campaigners for women’s rights, stood as a candidate for the convention. She was not elected, but did quite well, the first woman to stand for election in Australia.
Votes for women

When the convention met, women sent petitions asking for votes for women to be included in the constitution. The foundation of a new nation was a great opportunity for the women – and for men, as they told the convention. It could mark Australia as a progressive nation and set a standard for the world. In New South Wales, even though women did not have the vote, they formed organisations to campaign for federation at the referendum. By participating in this great national cause, they wanted to show themselves worthy of becoming full citizens.

At the convention two South Australian delegates, the premier, Kingston, and the treasurer, Holder, were the women’s advocates. They failed to get votes for women written into the constitution, but they did almost as well. At the first federal election, the voters were to be the same as those who voted for the colonial assemblies. This meant that South Australian women had a federal vote. By the time of the first election, Western Australian women had been granted the vote (in 1899) so they voted as well in the first federal election. Once the federal parliament met, it could set one rule for voting at federal elections, but it was not to take the vote from anyone who already possessed it. Parliament would find it impossible to retain votes for women in South Australia and Western Australia and deny it in the other States. All women must get the vote as soon as the federal parliament made its own law – which is what happened in 1902.

Other democratic changes were written immediately into the constitution. The Senate was to be elected directly by the people and not by the State parliaments. The senators were to receive payment as well as the members of the Representatives. Electors were to have only one vote which meant no extra votes for property holders. The constitution was to be altered by the electors themselves voting at referendum.
Democratic changes

The other major change was to provide for a means of resolving deadlocks between the two houses. Like the colonial constitutions, the 1891 constitution made no provision for this. Liberals and democrats had been so frustrated by the conservative colonial upper houses rejecting popular measures that they insisted that the federal constitution allow the people’s will ultimately to prevail. Most of the delegates from the large States, still worried about the small States dominating the Senate, wanted the same.

The arrangement agreed to was that if a measure had been twice rejected by the Senate, with a gap of at least three months in between, then both houses could be dissolved – that is, they were closed down and all the members were to face the electors (a double dissolution). If after the election of a whole new parliament, the two houses still disagreed about the measure, then they would sit together to resolve it (a joint sitting). At first a three-fifths majority was required at the joint sitting to pass the measure. This was altered to a simple majority at the request of New South Wales after the first referendum.

The only thing a democrat could still complain about was States with tiny populations getting the same number of senators as the large States. This was much complained about during the referendum campaign, especially by the Labor Party in New South Wales and Victoria, but without this, the small States would never have agreed to federation.

In their patch-up job on the American constitution, the Australian founders had been concerned to create a Westminster style government that could actually govern and to ensure that the popular will would ultimately prevail. But it was still an American model where power was dispersed. A national government in Australia can be frustrated by State governments, have its measures overturned by the High Court or blocked by the Senate. Until the 1970s the Labor Party opposed these restrictions on the national government and wanted a unitary rather than a federal government. They saw these restrictions as undemocratic. But as the power of government has grown, more people, including Labor people, are pleased that there are restrictions on it. Our thinking is moving closer to that of the American founders.
Restrictions on the national government

The Senate has not operated as most of the founders expected as a States’ house. As a few of the founders foresaw, parties provided the key division in federal politics, not a battle between large and small States. The Senate is still important for the smaller States because it means that overall they send more politicians to Canberra than if representation was solely according to population.
Senate’s role

If members of the one party control both the Representatives and the Senate, the Senate will not act as a house of review. Since 1949 the Senate has been elected by proportional representation which makes it easier for small parties and independents to gain seats and harder for a government to control the Senate. This has allowed it to develop as a strong house of review where government measures are closely examined in special committees. These are taken seriously because the Senate can reject measures. A government has the option of making a rejected measure the basis of a double dissolution election, but this is a cumbersome process. Compromise is the more usual outcome.

Responsible government has worked within the borrowed American framework. Only once has the system been thrown into crisis. In 1975, when the Whitlam Labor government was in office, the Senate refused to pass its budget until it agreed to hold an election. The Liberal-National majority in the Senate thought the government was so irresponsible that the people should immediately have the chance of passing judgement on it and electing their party to government instead.
Crisis – the dismissal of the Whitlam government

A government can only spend money with parliamentary approval. With its budget held up, the government was running out of money. But Mr Whitlam refused to call an election. He insisted that the Senate was overturning the system of responsible government where a government can govern while it has the support of the House of Representatives. The opposition senators said the constitution clearly gave them the right to reject money Bills, though they could not amend them.

Here was a conflict which the founders had not resolved. The governor-general resolved the crisis by using the reserve powers and dismissing the prime minister and calling an election. This act created such bitterness and division that it is unlikely to be repeated. The parties are interested in avoiding such a crisis. So the patch-up job continues to work.

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