Articles on the writing of the Australian Constitution

The Australian Constitutional System

“When the word “constitution” is used in Australia, it is often assumed that the reference is to a single document, the federal or Commonwealth Constitution of 1901. It is not well known, for at least two reasons. Apart from persuading fellow Australians of the good sense of federation, the founders had to struggle neither for independence nor to overthrow an oppressive regime. And as a sensible person doesn't fiddle with a watch or a car that works superbly, there is little need for Australians to refer to it, except of course, for specialist lawyers. In fact, the Constitution, broadly defined, is not contained in one single document. There is the Federal Constitution. And each State has a Constitution. Then there is the Statute of Westminster and the Australia Act. And then there are the conventions, or customs, according to which certain powers are exercised.

The constitution is in fact all this and more. Viscount Bolingbroke, some three centuries ago, defined the constitution as: “…that assembly of laws, institutions and customs, derived from certain fixed principles of reason… that compose the general system, according to which the community has agreed to be governed”.

And Australians, more than any other people, have freely and openly agreed to be governed by our constitutional system. Both the agreement to federate, and the changing of at least the federal and most of the State Constitutions, is done by the people directly.

The Australian Constitution of 1901 created a new political entity, but it did so in the context of several autonomous self-governing communities which had already developed out of the British colonies of settlement. These colonies had already developed strong democratic traditions, in most cases over half a century. They had embraced the Westminster system in which governments are responsible to Parliament. The new constitution built on these ideas but also introduced federalism, as developed in the American constitution”.

Chapter 5. Page 68: The Australian Constitutional System from The Cane Toad Republic, by Professor David Flint.

Federation

“When the colonies sought to federate, a written constitution was obviously needed. Such a discrete document did not regulate the affairs of the United Kingdom, nor would one regulate New Zealand when she was granted dominion status. Unlike New Zealand, “Australia was to be a federation comprising six pre-existing entities and one new one.

Thus it was necessary, as was the case in the United States and Canada, for a document to formally stipulate what powers the existing entities were giving up and the conditions upon which they were prepared to do so.

The main concerns of the founders are set out in the Commonwealth of Australia Constitution Act, 1900, an act of the Imperial (British) Parliament passed at the request of the Australian colonies.

First, the division of powers between the new Commonwealth and the existing colonies, which were to become the States of Australia.

Second, the separation of powers granted to the Commonwealth between its three principal organs of government: the parliament, the executive and the judiciary.

Although the new federal entity was to operate on the Westminster system, in answering these two questions the founders looked to North America”.

Chapter 5. Page 72: The Australian Constitutional System from The Cane Toad Republic, by Professor David Flint.

Who Wrote The Australian Constitution

“A theme of the recent republican debate has been the allegation that the Australian constitution is not of domestic origin, but rather is the dated work of our Imperial overlords. Prime Minister Paul Keating expressed such sentiments on at least two occasions, saying of the constitution in 1993: “It was framed as a routine piece of nineteenth-century British Imperial legislation. It shows its age.” (Australian, 2 August 1993)

In 1994 he declared; “Learning about the Constitution apprises people of the fact that we've got a constitution which was designed by the British Foreign Office to look over the Australian Government's shoulder.” (Australian, 16 June 1994)

True, the present constitution is encased in an Imperial statute, but it was essentially the work of local draftsmen, presented to the Queen for enactment by the Parliament at Westminster only after having first been ratified by the people of each colony at a plebiscite. The Imperial Parliament had the power to alter the constitution substantially during its passage through the two houses.

Nevertheless, the only alteration actually made of any import concerned appeals to the Privy Council, which have since been abolished. Indeed John Quick and Robert Garran attribute Federation and the constitution under which it was achieved to the efforts of the local communities rather than any colonial masters…”

Alfred Deakin

“Alfred Deakin, our great founder, said when it was proposed the Governor-General be elected:

…the office of Governor-General is not one to which a democrat will aspire. To make it an object of ambition you must change its character altogether, and make it an office like that of the President of the United States - a high executive office.

We are satisfied with all the other offices in the State being open to us, it being possible for the meanest, humblest, and poorest to aspire to the highest office in the Commonwealth - that is, the premiership”. (Official Report, National Australasian Convention Debates, 2 March to 9 April 1891, pp 570-71)

“Sir John Downer added to Alfred Deakin's words. He warned that if the Governor-Generalship became elective, then he would have a mandate, and a position on all sorts of matters. He would become a competitor to the Prime Minister”.

…I would ask him in what position will the Governor-General be when he is elected? If he is elected by the voice of the people, does the Hon. Gentleman assume that history will not repeat itself, and that the Governor-General will not assume a position something like that of the President of the United States…

…if we want to retain the authority in the people - apart from the question of whether it is to be in the Senate or the House of Representatives or both co-ordinately - subject to the authority of the Sovereign, it would be inviting at once an interference with that authority to put at the head of the government a person elected by the people, and who, from the very nature of his election, would speak with authority, and assume a dominion over the Commonwealth, which we are certainly not prepared to concede. (Official Report, National Australasian Convention Debates, 2 March to 9 April 1891, pp 571-72)

Sir Samuel Griffith
Sir Samuel Griffith, one of the most eminent of our founders, argued elsewhere in the debates that election of the Governor-General either directly or indirectly would not be conducive to the system of government as a whole.

Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people, from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.

The States of America, or Switzerland, or Germany, were drawn together under the shadow of war. Even the Canadian provinces were forced to unite by the neighbourhood of a great foreign power. But the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity.

We may well be proud of the statesmen who constructed a Constitution which - whatever may be its faults and its shortcomings - has proved acceptable to a large majority of the people of five great communities scattered over a continent, and proud of a people who, without the compulsion of war or the fear of conquest, have succeeded in agreeing upon the terms of a binding and indissoluble Social Compact.

There was no doubt at Westminster that federation was brought about by the Australians. In his second reading speech before the Imperial Parliament the Earl of Selborne explained:

The Constitution of the United States of America was born of a struggle for colonial independence. The Constitution of the Dominion of Canada was accepted as the solution of internal political troubles constantly recurring over a period of many years… The consolidation of the German Empire was rendered possible by the victories of a great war. It has remained for the people and the statesmen of Australia alone to determine to federate out of what I may call pure reason. They, and they alone, have looked to the future and, as custodians of the interest of their descendants, have determined to consolidate the colonies of Australia in one great Commonwealth. (Hansard, House of Lords, 29 June 1900)

It cannot be disputed that it was the Australian people and their statesmen that brought about federation.

Extracts from Chapter 5: The Australian Constitutional System from The Cane Toad Republic, by Professor David Flint.

Alfred Deakin

A founding father

Their are many sources of information about Alfred Deakin, but a concise source from a Christian vantage point is Chapter 4 in, “Discovering Australia's Heritage” by Col Stringer. (Published by Col Stringer Ministries Inc. PO Box number 3554 Robina Town Centre Qld.4230. ISBN 0 9577598 0 0 )

Alfred Deakin was born in Victoria in 1856. Like all of the founders and writers of our Constitution he came from that long stream of Christian revelation.

Alfred Deakin in his labours seeking the right words to reflect the reality about the power of men, daily wrote prayers to himself for assistance in this great task. We know he wrote over 270 prayers and reading those prayers you can detect how he asked and was delivered inspiration and answers. This can be seen in his use of the words referring to the spiritual father, “thee thine and thou”, not the father of the flesh, “he”, “him” and “who”.

Deakin was in good company, for all of the other architects of the constitution came from the New Testament heritage. When he advanced the words, “relying on the blessing of almighty God”, for incorporation in the Preamble, it was accepted without challenge from the others. He was the man we have to thank for having the Imperial Government in Britain pass the legislation approving our constitution and so a new independent nation.

He became the nations first Attorney General and our second Prime Minister where he served our new nation for 3 terms. He is credited with founding the High Court the Arbitration Court and The Royal Australian Navy, as well as selecting Canberra as the site for the nations first capital.

The Sydney Morning Herald (26-8-1885.) summed the work of Deakin and the others in the statement from Henry Parkes, known as the founder of federation, when he said, “We are pre-eminently a Christian people - as our laws, our whole system of jurisprudence, our constitution.....are based upon and interwoven with our Christian belief…”

Sir Samuel Griffiths

It was during the constitutional Convention that Sir Samuel Griffiths said of the Senate “A strong Senate will compel attention to its suggestions; a weak one will not insist on them.”

Indeed it is clear that the prime purpose of our Founding Fathers was to avoid a concentration of power in the House of Representatives, regrettably the very thing which has occurred under the banner of 'Responsible Government'…”

Responsible Government:
“We are concerned that the explanation of 'Responsible Government' as printed in the Glossary is not a correct definition and in fact is so biased in favour of the proposals that it is misleading.

The Glossary states: “Responsible Government: Responsible government is a particular form of government that was inherited from Great Britain. A great deal has been written about responsible government. At its simplest, it means that the government of the day is accountable to the lower house of parliament. The party or parties that win the most seats in the lower house of parliament, or has the support of the majority of members in that house, forms the government of the day. The members of that government, the Prime Minister and ministers, are also members of parliament and are not elected separately. The government remains in office while it has the support or 'confidence' of the majority in the lower house.

We submit that 'Responsible Government' means far more than this:
We submit that that the government of the day is not solely “accountable to the Lower House of Parliament” as this explanation infers, but, under our Constitution, also to the Senate and above all to the people.

General terminology referring to modern day Westminster parlance can in no way be made superior to our Constitution.

We submit that it is a matter of concern that the Australian Parliament has become subordinate to the Executive with an unhealthy concentration of power in the hands of the Prime Minister, as in Corporate Government.

The same occurrence had emerged in the United Kingdom. It was never the intention of Westminster for this to occur, for it breaks the chain of command in that the Executive should be subordinate to the Parliament and the Parliament to the People, not the other way around.

The basis of the discussions during the debates of 1891 and 1897/8, and indeed throughout all the Conventions held leading up to Federation, was to balance the needs of a federated authority against the needs of the individual States and above all without upsetting the rights of the people.

That the framers of the Constitution achieved this fine balance was a masterstroke of ingenuity. It is known from records of the debates that an inordinate amount of time was spent on deliberating the powers of the Senate, which was the first elected Upper House within a Constitutional Monarchy under the Westminster System, and on resolving potential impasses between both Houses. Several solutions were discussed and the process of sending the full Senate together with the House of Representatives to the People in a Double Dissolution was agreed upon as the most appropriate method of resolving any deadlock.

Other processes, such as a referendum, were considered to be outside the framework of 'Westminster' or would otherwise result in too great a concentration of power in the Lower House.

The Paper states:
“Why then in 103 years of federation has a double dissolution been used so sparingly? The answer is two-fold - cost and impracticality.” We submit that the real reason is that most disputed bills are resolved by negotiation which in itself indicates that the Section is working. Furthermore, the fact that it is often not politically convenient for a Government to go to the People in a Double Dissolution is not an excuse to amend the Constitution as proposed.

From, “A beginners guide to the Australian Constitution”. By Phillip Benwell, national chairman Australian Monarchist League.

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