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Focus question 2: How do you make a federation work?

Teaching and learning activities

Activity 1: Comparing the Australian and American Constitutions ESL Activity 1
Activity 2: Why Australia does not have a Bill of Rights ESL Activity 2
Activity 3: The powers of the States and the Commonwealth ESL Activity 3
Activity 4: Powers of the Commonwealth ESL Activity 4
Activity 5 Research project: States and Territories ESL Activity 5
Assessment task ESL Assessment task

Introduction

An essential ingredient for federation is a constitution. The constitution sets up the system of government and shares responsibility between the national government and the states.

There are some strong similarities as well as differences in the systems of government of Australia and the United States of America. Examining these similarities and differences will help you understand more about the way in which Australia is governed at present.

The two constitutions

Part of the first page of the Commonwealth of Australia Constitution Act

Part of the first page of the Commonwealth of Australia Constitution Act

Photo credit: Parliament House Art Collection, Canberra.

Detail from the American Constitution

Detail from the American Constitution

Library of Congress

How the two constitutions came to be

United States

In 1787, following the War of Independence, a convention was held in the United States which led to drafting a new federal Constitution. Leading politicians advocated a strong federation. After elected conventions in each of the States accepted it, the Constitution came into effect in 1789, the same year of the French Revolution (which overthrew the French royal family and also established a republic) and one year after the British colonisation of Australia.

Australia

In Australia the Constitution, which set up the new national government was drawn up by a convention held in the 1890s. For the 1897 convention, each colony, except for Queensland, which did not attend, sent 10 delegates. All male subjects of European origin were eligible to vote for delegates, except in South Australia (where women had the right to vote) and in Western Australia where the Parliament elected the delegates.

This Constitution was put to a popular vote. In 1898 a majority voted in favour but no vote was taken in Western Australia or Queensland. A second vote in 1899 (with Queenslanders participating) gained a bigger majority in favour, but Western Australia still did not vote. Western Australia voted in 1900 to join the Federation.

Similarities and differences

When Australia wrote its Constitution it kept many of the features of the system of government which had been used in the colonies, a system similar to that of Britain (called the 'Westminster' system after its location). But it also borrowed heavily from the United States Constitution, the first modern federal constitution. So Australia's Constitution is sometimes described as a 'Washminster' system of government, with a mixture of influences from both Westminster and Washington.

Activity 1: Comparing the Australian and American Constitutions

1a Read the following list of the features of the two constitutions:

Preambles (introductions)

USA: 'We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.'

Australia: 'Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established ...
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled ...'

Structure of parliament

USA: The Congress of the United States shall consist of a Senate and a House of Representatives. Australia: Parliament shall consist of the Monarch, a Senate and a House of Representatives.

Who elects the House of Representatives?

USA: The people: the voters to be those who vote for the Lower House of the State legislatures. Australia: The people: the voters to be those who vote for the Lower House of the State parliaments.

Who elects the Senate?

USA: Composed of two Senators from each State, chosen by the State legislatures, for six years.

Australia: Composed of six Senators from each State (now amended to 12 with an additional two from each Territory), directly chosen by the people of the State, voting as one electorate, for six years.

Bills concerning government spending and taxation: the Senate's powers

USA: The Senate may make amendments as on other Bills.

Australia: The Senate may not amend Bills on taxation and government spending. (It can suggest amendments to the House of Representatives.)

Deadlocks: what happens when the House of Representatives and the Senate cannot agree on a Bill?

USA: No provision. (The Bill is not passed. A new Bill may be presented.)

Australia: If the Senate twice rejects a Bill (with a three-month delay in between), the Senate can be dissolved along with the House of Representatives and an election held for the total membership of both Houses. If the Senate still rejects the Bill, a joint sitting of both Houses can be held and if a majority supports the Bill, it becomes law.

Payment of members

USA: The Senators and Representatives shall receive a compensation for their services. Australia: Each Senator and each Member of the House of Representatives shall receive an allowance.

The executive government

USA: A president to be elected every four years chooses cabinet ministers (called Secretaries - like our Ministers). The president and Secretaries are not members of Congress. Australia: Ministers (and the prime minister) must be Members of Parliament and have majority support in the House of Representatives.

Changing the Constitution

USA: The Congress sends amendments to the State legislatures and if three-quarters of them agree, these amendments become law.

Australia: Parliament puts amendments to the people at a referendum. If a majority of the people and a majority of the States agree, the Constitution is changed.

Head of State

USA: The President is the head of state. The President is elected by the people.

Australia: The monarch is the head of state. On the advice of the government, she appoints a governor-general to act on her behalf. The governor-general signs Bills that have been passed by both houses of parliament to make them take effect as law.

1b Working on your own, consider the following ten statements and say whether they are true or false. A 'true' answer indicates something that the constitutions of Australia and the United States have in common. A 'false' answer indicates a difference where Australia did not follow the United States.

  • The preambles show that both nations retained links to Britain.
  • Both have a House of Representatives elected to represent the people.
  • Both have a Senate to represent the States.
  • Both have equal numbers of Senators from each State.
  • In both constitutions, the Senators are elected by the people.
  • In both constitutions, the Senate can amend all Bills.
  • Members of Congress and Parliament are paid.
  • The executive government in both systems comes from the parliament.
  • In both constitutions the Senate can be sent to the people if it twice rejects a Bill from the House of Representatives.
  • In both systems the people are involved in amending the Constitution.

1c Using the comparison of Australian and American constitutions at the start of Activity 1, explain how the Australian Government is in charge of taxation and spending.

1d If a government is to function effectively, it needs to be in charge of taxation and spending. Which statement in the 'false' list helps governments to achieve this?

1e In Australia, when the Constitution was being drawn up, equal representation of the States in the Senate was criticised for being undemocratic. Delegates from the States with large populations only agreed to equal representation for the Senate if the House of Representatives could finally win in a disagreement with the Senate. Explain how the Australian Constitution allows the House of Representatives to prevail over the Senate.

1f Explain how the Australian Constitution gives people a more direct say than they have under the American Constitution.

1g In what ways does the Australian Constitution allow the people a more direct say than the American Constitution?

A Bill of Rights?

The United States included a Bill of Rights in its Constitution. The American colonies had been denied rights by the British Government and many feared that the new national government would become oppressive.

American courts refer to this Bill of Rights to decide how individual citizens can be treated and to disallow laws which contradict the Bill of Rights. Australia has no Bill of Rights and the courts rely on parliamentary and common law to protect the rights of individuals.

Bill of Rights Among the rights in the American Bill of Rights are:

  • freedom of religion
  • freedom of speech
  • freedom of the press
  • the right to have arms [firearms]
  • houses to be searched only with a warrant
  • punishment only by due process of law
  • a right to jury trial
  • no 'cruel or unusual' punishments
  • all citizens to have equal rights under the law (added in 1868 to protect the former slaves).

During the Convention of 1897-98, the writers of the Australian Constitution considered whether they should add some rights from the American Bill of Rights to the Constitution. Nearly all of them were opposed.

Activity 2: Why Australia does not have a Bill of Rights

Read the following extracts from the discussion at the Convention which explain some of the reasons why a Bill of Rights was not included in the Australian Constitution.

A Bill of Rights

Dr Cockburn, delegate from South Australia, on due process:

Have any of the colonies of Australia ever attempted to deprive any person of life, liberty, or property without due process of law? ... The insertion of these words would be a reflection on our civilisation. People would say - 'Pretty things these states of Australia; they have to be prevented by a provision in the Constitution from doing the grossest injustice'.

Mr Isaacs, delegate from Victoria, on due process:

I say that there is no necessity for these words at all. If anybody could point to anything that any colony had ever done to persecute a citizen without due process of law, there would be some reason for this proposal.

Sir John Forrest, Premier of Western Australia, on equal rights under the law:

In Western Australia no Asiatic or African alien can get a miner's right or go mining on a gold-field. We have also passed an Immigration Act which prohibits even undesirable British subjects from entering the colony. I do not know how this clause will act in regard to these matters.

Mr Isaacs, delegate from Victoria, on equal rights under the law:

It was put in the American Constitution immediately after the Civil War, because the Southern States refused to concede to persons of African descent the rights of citizenship ... It would protect Chinamen in the same way ... It prevents discriminations on account of race or colour.

Extracts from Debates of the Australasian Federation Convention, 3rd session, Melbourne 1898, vol 1.

2a Mr Isaacs believed that there was no necessity for a Bill of Rights because rights were already protected. How and who for?

2b Which groups did Mr Forrest and Mr Isaacs not want to be protected by a Bill of Rights?

Mr Menzies on why Australia does not have a Bill of Rights

Sir Robert Menzies was the longest-serving Australian prime minister (1949-66). Soon after he retired he went to the United States to lecture on the Australian Constitution. He explained to his American audience why a Bill of Rights had not been included in the Constitution and was still not necessary.

There is a basic difference between the American system of government and the system of 'responsible government' which exists both in Great Britain and Australia ... With us, a Minister is not just a nominee of the head of the Government. He is and must be a Member of Parliament, elected as such, and answerable to Members of Parliament at every sitting ... Should a Minister do something which is thought to violate fundamental human freedom he can be promptly brought to account in Parliament.

Menzies, RG 1967, Central Power in the Australian Commonwealth, Cassell & Co, London, p 54.

2c Which feature of the Australian Constitution is Menzies referring to? Do you agree with him that this provides adequate protection for human rights?

The balance of power between Commonwealth and State governments

Most delegates to the Australian Federal Convention wanted to keep the States strong and give to the national government only those matters which had to be dealt with on a national basis. In the Constitution they listed the matters which were to be given to the national government. Everything else was left to the States.

Activity 3: The powers of the States and the Commonwealth

3a Following is a list of areas of government activity. In pairs, decide which should be performed by the Commonwealth Government and which should be left to State governments.

agriculture
banks
defence
education
environment
foreign affairs
health
immigration
old-age pensions
overseas trade
police
post office
weights and measures

3b List which activities were given to the Commonwealth Government by the Constitution. You will need to consult Sections 51 and 52 of the Constitution. Did you give more powers to the Commonwealth Government than the Constitution did?

Activity 4: Powers of the Commonwealth

Since 1901 the Commonwealth Government's powers have grown enormously, even though there has been very little change to the Constitution. Many attempts to give the Australian Commonwealth Government more power have been defeated at referendums. The only successful attempts gave the Commonwealth power over social security (in 1946) and Aboriginal affairs (in 1967). However, the Commonwealth is now involved in many other activities which, in the Constitution, were left to the States.

4a Here is a list of activities involving the Commonwealth Government. Make a list of the activities which are not mentioned in the Constitution as Commonwealth powers. Check Sections 51 and 52 of the Constitution.

Aboriginal affairs
arts
communication
consumer affairs
defence
environment
equal opportunity and human rights
foreign affairs
health
housing
immigration industry
industrial relations
primary industry
roads
schools
social security
sport
tourism
trade
universities
veterans' affairs

How the Commonwealth Government has become more powerful

There are three main ways in which the Commonwealth Government's powers have been increased.

1 The High Court, which interprets the Constitution, has favoured the Commonwealth and allows powers granted to it to have the fullest possible meaning. For example, the Commonwealth's power over corporations (businesses) has also been interpreted to mean that it has the power over consumer affairs (to do with the quality of goods business produces and the services they offer).

2 With the help of the High Court, the Commonwealth now collects most of the taxes. It gives money to the States, but on certain conditions which the Constitution allows it to do (Section 96). So the Commonwealth gives money to the States for schools, housing, and roads and tells them how it must be spent, even though these activities are left solely to the States in the Constitution. (In this case, one part of the Constitution has been used to overrule another part of the Constitution.)

3 The Commonwealth has power to sign treaties with other countries. In 1901 treaties dealt only with alliances, peace settlements and trade. Now they deal with many other subjects. If the Commonwealth signs a treaty it has the power to put it into practice. So the Commonwealth can now make laws about the environment and human rights since there are treaties on these subjects.

4b Check your understanding by choosing the right option and completing each sentence in your workbook.

The High Court in interpreting the Constitution has:

a kept the existing balance between the Commonwealth and the States
b favoured the States
c favoured the Commonwealth.

The Commonwealth has expanded its power by:

a breaking the Constitution
b giving money to the States with conditions
c persuading the people to give it more power at a referendum.

The Commonwealth obtained power over the environment because:

a the States handed their powers over the environment to the Commonwealth
b the Commonwealth signed an international treaty on the environment
c the people gave the power to the Commonwealth at a referendum.

Activity 5: Research project - States and Territories

In the Constitution the Territories are made completely subject to Commonwealth control. They are now treated like the States for financial matters but their laws can be overridden by the Commonwealth Parliament.

The relationships between the Commonwealth and State and Territory governments flare up in regular disputes, often to do with the way in which money is shared. But there are other disputes too about the respective rights and responsibilities of the different levels of government.

5a Locate a recent newspaper story about a dispute between the Commonwealth Government and a State or Territory government. Paste it on a poster-sized piece of paper.

5b Under the cutting:

  • say in one sentence what the dispute is about
  • describe what the Commonwealth Government wants and what the State or Territory government wants
  • say what you think the basis of the dispute is, for example, 'the dispute is about power' or 'about the distribution of money' or 'about local issues which the Commonwealth Government is less able to understand' etc.

5c In your class, conduct a debate on the issue:

'We no longer have any need for States and Territories or their governments.'

Use the following points for and against the States and Territories to get the debate started.

For the States and Territories

  • The States and Territories are different communities with different needs.
  • The State and Territory governments are closer to the people, can respond better to their wishes and so are better democracies.
  • The country is too big to be run from Canberra.
  • Having eight State and Territory governments allows for experiments in new laws and policies and stops one government having complete control.

Against the States and Territories

  • Australians are one people and want the same standard of government services and the same laws on things that matter.
  • There is a huge inefficiency and expense in having many governments dealing with the same things and in conflict with each other.
  • Modern communications make government from Canberra possible.
  • The fact that the Commonwealth raises money and States and Territories spend most of it makes it too easy for them to blame each other for failings in government services.

5d Following the debate, write your summary of the conclusions on your poster, giving your own opinion.

Internet 5e Post some of the views of people in your class on the Discovering Democracy website (http://www.curriculum.edu.au/democracy/). Make contact with a school in another state with some different views on the issue.

Assessment task

Some American friends have written to you for information for a school project. They have questions they would like you to answer:

  • Why did the British colonies in Australia decide to federate?
  • What were the main arguments against federating?
  • Was there a revolution? If not, how did Federation come about?
  • Is the Australian Constitution like the American Constitution? What are the similarities and what are the differences?
  • Why doesn't Australia have a Bill of Rights?
  • What benefits are there for Australia in being a federation?

Write back, giving answers to the questions as clearly and completely as you can.

Assessment criteria

Your work will be assessed on:

  • the accuracy and completeness of your explanation of the main reasons for the colonies federating in 1901
  • the accuracy of your explanation of the main arguments against federating
  • the accuracy of your explanation of the main similarities and differences between the Australian and American constitutions
  • the clarity and completeness of your explanation of the reasons Australia does not have a Bill of Rights
  • well supported argument, with examples, of the benefits of being a federation.

ESL activities

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