Aroney's Chapters 3 and 4

Chapter 3: Models and sources (Week 2)

  • The reason for Australia’s federal form was both practical and philosophical.
  • Practical: the colonies had enjoyed independence sine 1850. Griffith observed: the states had become partially almost sovereign states. They were not willing to sacrifice this autonomy, so unitary nation building was not possible. Griffith explained the preconditions of federalism as being: the states surrendering just enough power as is necessary and allowing the fed to do what they cannot do signally or collectively.
  • Philosophical: Academics and theorists supported federalism and identified it throughout history (Greek and German), as well as the modern Swiss/US/Canadian examples. Montesquieu and Tocqueville: argued that federalism avoided the weaknesses of small states and large empires.
  • Clark: federations were praised by writers and in fashion for the ‘new world’.
  • Not universally popular: the US civil war illustrated the inherent defects in the federal design. Yet federalism remained enticing for the ‘new world’.
  • The US federation was an influence because:
  • Writers like Bryce, Dicey and Freeman had it in mind when theorizing
  • It provided a formative basis for the unification of separate states—the ways the peoples of … and the people were represented in the legislature
  • Power distribution and amendment
  • Switzerland demonstrated dual referendums for constitution amendments and provided the example of a functional federation that wasn’t built on a presidential system – important given that the colonies remained part of England.
  • Canada showed how a federal system might adapt to a monarchical and parliamentary system within the British Empire.
  • Learnt from historians, philosophers, the framers of US/Canadian constitutions, and foreign constitution case law so that the framers could understand how constitution enactments may be interpreted [Marbury v Madison; Hodge v The Queen see pg: 72].
  • A close analysis of the 1890s debates/writings suggests the influences were (quantitively) dicey, freeman, Bryce and (qualitatively) Madison and Burgess.

James Madison

American Founding Father – initially a nationalist (supporter of a strong national government and weak state ones). After failing to achieve this, he came to the conclusion that the proposed constitution was actually both federal and compactual (see Federalist No. 39) and ultimately supported it.

  • Provides the most accurate empirical framework against which to understand the structure and nature of the modern federal state. Madison idea of a ‘confederate republic’ was influenced by Montesquieu
  • Smaller states forming an assemblage of societies; ultimately rising to the extent that the newly created state has the power to provide for all of them (smaller initial states).
  • This assemblage served to provide ‘internal happiness’ to the smaller states, which retained their identity and self government and gained the ‘defensive’ strengths of a larger kingdom.
  • Blackstone influenced the American’s with his ‘jura summi imperii’ ‘rights of sovereignty reside’=> the rights of the sovereign must reside is some supreme and uncontrollable authority. This contradicted the ultimate compromise achieved in the American situation, and many believed sovereignty thus had to be granted to the states or federal government.
  • Hamilton argued a ‘national sovereignty’ was needed, and that the states had to be dependant and subordinate to the American government, as a whole, but later agreed the constitution assumed the states were ‘constituent parts’ of the national sovereignty, with a direct representation in the senate and certain spheres of exclusive power.
  • Adams and Henry opposed ratification of the constitution. Henry argued: we the people…’ undermined the states’ role in the compact
  • Hamilton responded: the constitution is perfectly confederate according to Montesquieu’s idea of a ‘confederate republic’.
  • Confederate republic: an assemblage of societies. So long as states are not abolished and they co-exist for local purposes constitutionally, though in subordination to the general authority of the unity, it remains an ‘association’ of states of confederacy. States are constituent parts of the national sovereignty by allowing them a direct representation in the senate (giving them portions of sovereign power).
  • Why Madison viewed it as a ‘federation’ –
  • It was federal rather than national because:
  • The people under the several states- not the people as a whole- were to rectify the constitution
  • Ratification depended on the unanimous consent of the states (not majority vote)
  • Why Madison viewed it as ‘partial’—

1) Federal aspect: the senate derived its powers from the states
2) A national aspect: the people as a whole represented in the house of reps.
3) Compound of national and federal; the election of a president would depend on a;
a. State-by-state basis (equal proportion a societies and population)
4) Compound of national and federal: amending clause as:
a. If it were ‘national’ a majority would suffice
b. If it were ‘federal’ a unanimous vote of states would suffice

James Bryce

A British jurist, historian and politician, author of ‘The American Commonwealth’, was probably the most prominent influence on the Australian framers. His approach was free of abstract theorizing as it described and highlighted the dual ‘compactual and national’ nature of the US federation.

  • Most striking characteristic of the US federation was the existence of a a) double allegiance b) double patriotism
  • The constitution of 1879 was a compromise in allowing 2 contradictory propositions to rule.
  • The US was neither a loose compactual league nor a unitary national government. It was a ‘commonwealth of commonwealths’: a state, while one, is composed of other states that are more essential to the existence of the big state than it is to theirs.
  • He was critical of ‘metaphysical’ theories, which aimed at locating sovereignty in either the states or the fed government, and found that both the states and federal governments were sovereign in their own spheres, contrary to theorists of indivisible sovereignty: Hobbes, Bodin and Austin.
  • The defining characteristic of federalism was the federal executive authority over individual citizens. Not the ‘ultimate sovereignty’ of the ‘people’ of the nation. Which would go back to compactual v national distinctions (e.g. where does sovereignty lie?) (See pg, 80). In this respect, his approach was a mediating one, like Madison’s
  • When discussing the ‘dual sovereignty’, Bryce believed that ultimate sovereignty laid with the people of the several states NOT necessarily the people ‘of a nation’.
  • Adoption of a Diceyan interpretation: the idea that the Senate did nothing to secure rights of the different sized states as the rights had already been settled - implying that such rights were legislative only (see pg, 81).
  • He was critical of restricting representation based on each region, rather than ‘the best men of each state’ – saw federalism as purely two level, nation and state, and rejected the idea of towns/communities making up the state in the same manner.
  • Bryce believed that the state had power to grant or refuse local governments, as the power of the state over all communities within its limits is absolute (see pg, 83), but contradicted that somewhat by also identifying the importance of local self-government with the towns as the basic building blocks of the American states.
  • In achieving self-governance, Bryce (as did Dicey) believed in judicial independence and review. However, he did not view it as ‘vital’ as did Dicey (citing Switzerland as an example)
  • Bryce identified the manifold blemishes of the American system (civil war, incoherent policies re states and federal government etc). He believed these blemishes were outweighed by the desirability of having such a system of a ‘commonwealth of commonwealths’.
  • It provided the best means of governing a vast country and prevented the development of a despotic central government.
  • It stimulated popular involvement in political life and secured the good administration of political affairs.
  • The Australians used his writings to support ideals such as
    • Local self government
    • Federal representation
    • Responsible government
    • Democracy
  • He criticized the:
    • Lack of leadership in the HOR in America
    • The separation of powers

Edward Freeman

Eminent English historian, focused on the empirical and historical. Wanted to enter parliament, but lost the election when he attempted to do so. Had a very broad definition of federalism down to the local level, based on the Greek city states.

  • He had a broader definition of federalism, viewing it as:
  • A compromise between 2 political systems… In its perfect form, the component members would be ‘wholly independent’ or sovereign in the sphere, which concerned them alone, but subject to a common power in those matters, which concern the whole body of members collectively.
  • Federalism arose out of independent states rather than a division of united territory.
  • Viewed ideal federalism as possessing (1) expedient unity (in terms of defense and economic unity); (2) showed that ‘integrative federalism’ could be adopted at local-state level (Greek city-states) differing from Bryce who believed that localized self-governance could be achieved; however not at a purely ‘local’ level.
  • Local divisions are not traced out for the convenience of a map. They are not ‘divisions’ at all but elements from which the kingdom grew.

A V Dicey

Dicey was an English lawyer and Professor at Oxford. He wrote from a unitary British perspective, where all power is consolidated in Parliament, and attempted to resolve the division of powers in a federation via slightly creative means – allocating sovereignty to the constitution itself, making the government subordinate to it (via judicial review, which he felt was an essential component of federalism).

  • A lawyer, so provides a very legalistic recount.
  • Dicey viewed powers as a ‘division of powers’ and saw the HC task accordingly in interpreting/enforcing the constitution.
  • Believed the powers should be set out in a rigid constitution
  • The very essence of federalism was the manner in which the powers were ‘divided’ which limited on every side the action of government—this being an ‘essential’ distinction between federalism and a Unitarian system of government.
  • He thus viewed judicial review as essential (unlike Bryce).
  • Dicey recognized the compactual, formative processes of federation, as well as his all important ‘division of powers’.
  • Believed in the integrative formation and division of powers, as encapsulated by a ‘complicated contract’.
  • He also believed in ‘parliamentary supremacy’; however, in a federation the sovereign was like a ‘monarch who slumbers and sleeps’.
  • Thus, federal government are weak as there is no sovereign possessed of absolute legal powers; as described by Austin.
  • According to Austinian dogma, there could only be one sovereign in an independent political society. Thus Austin was forced into a ‘composite’ (national) and ‘confederate’ state dichotomy. This was because a power of the sovereign was absolute and indivisible; emphasis on ‘one’. Any alternative was therefore operating in a ‘state of nature’ or to or more independent political societies.
  • Dicey differed in his theory on federalism largely because he was not committed to a universal theory of sovereignty and drew upon the pre-existing independence of states and the compactual origins of federations.
  • A federation was elaborately divided so that the sovereign powers rested with the constitution, which subordinated the federal government.

John Burgess

Pioneering American political scientist – wrote from a heavily nationalist perspective despite living in a federation himself, and strongly influenced Higgins and Isaacs. Argued that the states ultimately relinquish power to the federal government, and that any limitations to federal power were ‘relics of confederacy’ or ‘undemocratic errors’

  • Exclusively nationalist.
  • Influenced Australian nationalists (e.g. Higgins and Quick & Garran).
  • The nation-state was the strongest and most perfect.
  • Federalism was preferred in a ethnic variety, absent such a variety, the nationalist structure should prevail.
  • Believed in the democratic embodiment of the sovereign and democratic majority.
  • The federal transferred residue powers to local governments, through revolutionary processes.
  • Burgess’ idea of federalism rested on sovereignty, similar to Austin.
  • The people had the sovereign power and expressed it as a majority.
  • The equal representations of states, in the senate, are seen as relics of conferederalism and undemocratic errors.
  • Unlike Madison, Burgess’ theory could not account for the amendment and formative procedures, and representative structures (all these points are difficult to reconcile with ‘unitary sovereignty’).
  • The integrative nature of the formation made it difficult for Burgess’ proponents to advance arguments in favor of the nationalistic view.

Chapter 4: Australian appropriations

Quick & Garran: A federal state is a composite union. It thus describes, not the bond of union between the federating states, but the new state resulting from that bond. Union has created a new state, without destroying the old states; that the duality is in the essence of the state itself that there is a divided sovereignty, and a double citizenship.

Thomas Just

Influential Australian author/propaganda expert commissioned to write a book for Andrew Inglis Clark. Was detailed, drew on various other influential authors, and seemed designed to guide the reader towards the conclusion that an American style federation would be the ideal scenario. He achieved this through selective and judicious reproduction of authors such as Montesquieu and Madison.

  • Work on the instructions of the influential Tasmanian A-G, Andrew Inglis Clark. Just’s work was descriptive and empirical.
  • It contained a variety of statements of both political principle and practical necessity, and the extracts that it reproduced were organized in a way that was calculated to guide the reader in a particular direction.
  • He believed the US circumstance was alike to that of Australia’s and as such believed that this should guide the formation of Australiasia.
  • Believed that the Aus colonies should be accorded complete independence: that is, the entire control of all matters affecting their interests, as men [women] and as citizens. In every possible way.
  • Constituent states not merely retain a ‘municipal independence’ in ‘little matters’ but hold actively secure the entire control of all matters affecting their interests.
  • Stagnation occurred with re to federal decision-making. This led to the idea of the ‘majority’ vote in matters of common concern.
  • Foster was afraid of too much centralization (see page, 105).
  • Believed in Montesquieu ‘s approach to federalism (the dis/advantages of an empire and small provincial state).
  • Hamilton believed that the states should not be abolished as they fulfilled the federal local functions.
  • This is reflected in the American senate: direct representation (of states) and leaving them with certain exclusive and very important portions of the sovereign power.
  • The American model, as elucidated by Madison, loomed large in Just’s analysis (as well as Hamilton’s).

Andrew Inglis Clark

Much like Just (who he commissioned), Clark favored the American model. He created the ‘definitive’ draft of the constitution in 1890, after travelling to London to appeal before the Privy Council. It was based on the British North America Act, US Constitution, Federal Council of Australia Act and various Australian Colonial constitutions. Ideas he pioneered that made it into the final version included:

  • The Australian federation is described as the Commonwealth of Australia
  • There are three separate and equal branches - the Parliament, the Executive and the Judicature.
  • The Legislature consists of a House of Representatives and a Senate
  • It specified the Separation of powers and the Division of powers between the Federal and State governments.

General Notes:

  • He preferred the US model over the Canadian
  • Drew attention to the Swiss model, in particular the democratic organization.
  • The federation, as perceived by Clark, was a compact between states. Delegated powers ensued and otherwise were ‘reserved’ to the states and people.
  • Aus states performed more functions (than the American) and therefore, he believed they should remain independent.
  • Believed in the equal representation of the senate; however, the HOR would be elected on a strictly proportional basis.
  • Federal judiciary (see page, 108)
  • Unlike the Canadian system state governor were to be elected separate from the federal government, this being essential to secure the independence of the provincial governments.
  • Dependence on the crown posed a hindrance for the adoption of a republican system.
  • Clark expressed reservations about a system of responsible government.
  • On this note, he favorably represented the Swiss government’s ‘negative knowlegde’.
  • He proposed a draft of the constitution which had an influence in the 1891 convention (see page, 109)
  • Clark agreed with Dicey’s rendition of federalism as an expression of the sovereignty embedded within constitutionalism and the judiciary.
  • Believed in a ‘division’ of legislative and executive power between the comprehensive and competent communities.
  • Unlike Dicey, Clark did not refer to a division of ‘original’ powers of sovereignty.
  • He purpose of the Aus and American constitutions was therefore to define the relevant powers and vest the concurrent powers of veto’ between the governments for proposed legislation etc.

Richard Baker

A South Australian delegate at both conventions, and prolific author, he wrote several guides similar in nature to Just for both conventions. He looked at existing constitutions – Swiss, Canadian, American, and South African. Tried to be more an impartial reference, but advocated equal power between the House and Senate, criticized responsible government, and ultimately favored a Swiss style executive council.
Studied the existing federations: Swiss, Canadian, American and South African.

  • Rejected Calhoun’s analysis that the US federation was a compact between states (centrally).
  • He believed that the US constitution derived from the people, but also adopted the Madisonian view,
  • Baker favored ‘responsible government’ but soon concluded that the consolidating tendencies of responsible government were inconsistent with equality of representation of the states in a powerful senate.
  • A proponent of ‘self-government’ and advocated the idea of ‘ delegated powers’ between the duality of government.
  • HOR and senate representation was to be co-equal in order to capture the very essence of federalism.
  • Distinguished confederation and federation on the basis that a federal government had jurisdiction over ‘individual’ citizens. Thus he avoided the debate over sovereignty (whether allocated in the state or nation states).
  • He explained that he favored the Swiss and American model as it portrayed a perfect balance between centralization and decentralization.
  • Canada (strong national force and Germany (strong local force) were not considered by him as perfect portrayals of what federalism ought to represent.
  • The notion of executive responsibility, which was exclusive to the HOR was a real defect, for baker (a proposal at the 1891 convention). Following James Bryce, Baker was critical of:

A) Responsible government: for its consolidating tendencies.
B) American separation of powers: for its for its tendency to disintegrate government and weaken governmental responsibility.

  • Baker argued that the executive should be chosen by both houses to avoid the weaknesses of the American system.
  • He favored the election of senate by each legislature (state) in order to place constraint on federal power (which would likely rise under a system of ‘direct’ election).
  • Eventually, Aus gave effect to the system of ‘responsible government’; however, cynics such as Baker, reached compromise under s 53 of the senate’s powers.

Samuel Griffith

Former Premier of Queensland, the first Chief Justice of Australia, and most respected lawyer in Australia during the period, Griffith headed up drafting committee despite not being able to directly represent Queensland due to the secession issues. He was a strong supporter of state autonomy and the ‘federal compact’, particularly during his tenure as Chief Justice.

  • Under Griffith’s leadership the drafting committee prepared the bill which was eventually amended and approved.
  • Advisor and commentator at on the constitution bill of 1898.
  • Griffith observed that the Aus colonies had become more independent than the American.
  • This had 2 implications:

1. Practical: the individual colonies would seek to preserve the constitution status to which they had become accustomed.
2. Normative: presupposition that the Aus colonies were entitled to ‘self-government’, to sovereignty and to separateness […] absolute freedom to manage their affairs as they would hesitate to give up any of those rights which they have been in the habit of exercising.

  • colonial legislatures were thought to represent and enact for the colonies.
  • The Australian federation rested on public opinion rather than the delegates.
  • Griffith’s ideals: ‘complete federal government’ as ‘one dominion with no rivalries’.
  • Griffith and Baker avoided the assumption of ‘people as a whole = sovereignty’. Like Baker, he opted for the federations are different from confederations as they have direct control over individual citizens.
  • Saw a delegation, transfer; rather than ‘division’ of powers.
  • Central political value of Griffith was his belief in local self-governance, each colony being a separate body politic …
  • Guiding principle for the delegation of powers was: ‘ must only surrender those powers which may be exercised by the federal government with greater advantage than the separate governments.’
  • Responsible government was seen as a ‘new thing’ and exercised at a federal level, so long as federalism was the guiding principle.
  • States had to be equally represented in the senate.

John Quick and Robert Garran

Representatives and authors during the process, they are best known for their collaborative effort, the Annotated Constitution of the Australian Commonwealth, published in 1901. They viewed federalism the same way Dicey did – as a two-fold sovereignty under the constitution, guarded by judicial review. They ultimately straddled the line between compactualism and nationalism, much like Madison had done so many years before, but took advantage of Australia’s relationship with England to allocate ‘ultimate sovereignty’ to the Imperial Parliament, rather than having to find it somewhere between states and commonwealth.

  • Following Dicey: federalism aims to reconcile ‘national unity’ with ‘state rights’, in order to bind a group of states into a nation without destroying the individual states.
  • Dividing sovereignty and attributes of government between a central government and a group of local state governments.
  • Essential characteristics of federalism:

1. Supremacy of the federal constitution.
2. The distribution, by the constitution, of the powers of the nation and states respectively.
3. Judicial or other body to act as ‘guardian’ or ‘interpreter’ of the constitution.

  • Quick & Garran cited a lot of nationalist works such as Burgess and Dicey.
  • Following Austin, Dicey and Burgess, Quick & Garran held that: ‘ clear conception of the meaning of ‘sovereignty’ was the key to all political science’.
  • Unlimited universal power: the sovereign was a body or person that possessed such power within an independent state.
  • Wilson believed: there must, as a matter or necessity, be a supreme authority, which for him resided in the people.
  • S 128 of the constitution posed a problem for such interpretations (the idea of dual majority).
  • However, Quick & Garran conceded such things were inconsistent with sovereignty.
  • Subsequently, Q & G adopted the Madisonian analysis mediating any nationalist views.
  • Duality is in the essence of the state and there is a divided sovereignty, and a double citizenship.
  • Following Burgess:
  • No such thing as a federal state; that if there is a state at all it must be a national state […] ‘federal’ can only be legitimately used as partition and distribution of powers, which is peculiar to a federal system. Federal, it is said, is properly applied to denote a dual but co-ordinate system of governments, under one constitution. and subject to a common sovereignty.
  • See page, 175 for the differing views Q & G adopted.
  • Q & G believed ‘will of the people’ in the formative process was of a ‘consolidating and nationalistic’ tendency.
  • But they also noted that the people voted as ‘provincial voters’, where a majority in each colony was required.
  • In re to the ‘representative structure’ they pointed out:
  • Clause 6 provides that states are ‘part of the comm.’
  • [..] Senate derives power from the states via the ‘rule of equality’.
  • Despite acknowledging Madisonian aspects of the federal system, Q & G concluded: that the true ideal of federalism was described by Burgess.
  • For them the solution of the compactualist v nationalist interpretation rested with the ‘overarching authority of the imperial parliament’.

Charles Kingston

A radical democrat, and delegate from, and later Premier of, South Australia, Kingston also produced his own draft constitution. He favored some fairly radical ideas, such as popular referendum to veto statute, as well as altering the constitution, but also supported other conventions that did make it, such as enumerated powers, equal state representation in the senate.

  • Maintenance of local government.
  • A radical democrat (unlike Griffith).
  • (See page, 128-9 for Kingston’s specific demands).
  • Kingston supported the ‘direct’ election in the formative process and for both the houses of parliament.
  • Believed each colony to be represented on an equal basis.

Isaac Isaacs and H B Higgins

Fervent nationalists, they lost most of his proposals while drafting the constitution due to the extreme nature of their views. They were later appointed to the High Court early in the 1900’s, but not amongst the original appointees, where they constantly dissented until the ‘changing of the guard’ in 1920. Opposed the structure of the senate, the second ‘state’ sense of majority for amendment, and state autonomy and powers in general.

  • Higgins and Isaacs: liberal nationalist interpretations of federalism.
  • Must be an institution where ultimate sovereignty is located.
  • Higgins believed sovereignty lay with those who have the capacity to determine the nature of the constitution. Thus ‘practical’ sovereignty ought to rest with the Australian people.
  • Following Locke, he maintained, ‘popular’ sovereignty must involve ‘majority rule’.
  • Problem was that federation arose through the consent of the people ‘of each state’.
  • Despaired at the fact of the amendment process (dual majority) and equal representation of states.
  • Essential to federalism (agreeing with Dicey & burgess) was the ‘division’ of powers not ‘equality’ of governments.
  • Engineer’s case: (Isaacs) declared that the central premise of the constitution was the compact of the people as a whole. Thus rejecting the more compactual approaches of Griffith for e.g.