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Waugh, John --- "New Federation History" [2000] MelbULawRw 40; (2000) 24(3) Melbourne University Law Review 1028


Review Essay

New Federation History

The Centenary Companion to Australian Federation edited by Helen Irving (Melbourne: Cambridge University Press, 1999) pages i–xxii, 1–474. Price A$54.90 (hardcover). ISBN 0 521 57314 9.

The New Federalist: The Journal of Australian Federation History edited by John Bannon and John Williams (Adelaide: Law School, the University of Adelaide, 1998–). Annual subscription A$33.00. ISSN 1440 642X.

INTRODUCTION

After nearly a century of cautious self-denial, judges are at last exploring the full riches of the historical record of Federation. Their public attitude was once very different. In 1972, when John La Nauze’s The Making of the Australian Constitution was published, judges’ eyes were officially closed to some of the best sources of information about the framing of the Constitution. Most importantly, the High Court generally refused to allow reference to the Federal Convention Debates. Griffith CJ declared that the Debates were not to be referred to, ‘except for the purpose of seeing what was the subject-matter of discussion, what was the evil to be remedied, and so forth.’[1] In practice, the Court failed to make even this limited use of the Debates and also declined to rely on draft Bills for the Constitution other than the official drafts of the Constitutional Conventions.[2]

It was in his review of La Nauze’s book that Leslie Zines reproduced that famous piece of High Court absurdity, the argument in Strickland v Rocla Concrete Pipes Ltd[3] in which counsel and judges debated what they would find if they looked at the Convention Debates, while all the time affirming that, of course, they were not allowed to. The extracts ended with the following exchange:

Mr Ellicott: My friend Mr Lyons did refer to the convention debates as if they might support the view for which he contended. That reference, of course, was not permissible; but all I want to say is that if they were looked at, one would find the contrary.
Menzies J: That, too, is impermissible.
Mr Ellicott: No doubt your Honours will not look at them.[4]

This sort of nonsense ended with the Court’s decision in 1988 to allow reference to the history of s 92 and, by implication, other sections of the Constitution,

for the purpose of identifying the contemporary meaning of language used, the subject to which that language was directed and the nature and objectives of the movement towards federation from which the compact of the Constitution finally emerged.[5]

A new edition of the Convention Debates in 1986 and their subsequent publication on the Senate Internet site have made them more accessible.[6] The Court already used other historical sources. Decisions long before 1988 show repeated, if cautious, reliance on the historical background to constitutional provisions.[7]

No longer prevented from citing the Convention Debates, and provided with a growing range of accessible sources of Federation history, the judges debate its relevance. McHugh J has reaffirmed the traditional principle that, as Barwick CJ put it, the words of the Constitution ‘are to be read in that natural sense they bore in the circumstances of their enactment by the Imperial Parliament in 1900’.[8]

Because the intention of the makers of the Constitution is one to be determined objectively, the present generation may see that the provisions of the Constitution have a meaning that escaped the actual understandings or intentions of the founders or other persons in 1900.[9]
Nevertheless, even when we see meaning in a constitutional provision which our predecessors did not see, the search is always for the objective intention of the makers of the Constitution.[10]

Although the search is not for the subjective intentions of the framers, ‘the true meaning of a legal text will depend on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood’.[11]

Kirby J, on the other hand, looks much more sceptically at evidence of the intentions of 1900:

In my respectful opinion, it is to misconceive the role of this Court in constitutional elaboration to regard its function as being that of divining the meaning of the language of the text in 1900, whether as understood by the founders, the British Parliament, or ordinary Australians of that time. ... In my opinion, the Constitution is to be read according to contemporary understandings of its meaning, to meet, so far as the text allows, the governmental needs of the Australian people.[12]

‘It is today’s understanding that counts’, he says.[13]

Reference to 1900, if made at all, should be in the minor key and largely for historical interest. Not for establishing legal limitations.
In my opinion, a consistent application of the view that the Constitution was set free from its founders in 1901 is the rule that we should apply.[14]

Kirby J doubts, and McHugh J affirms, the traditional doctrine that the connotation of a constitutional term — its meaning in 1900 — remains fixed while its flexible denotation designates different things as circumstances change.[15]

This is not the place to investigate these differences of opinion about methods of constitutional interpretation. What they illustrate is the continuing significance of argument about history in decisions of the High Court, not only in Eastman v The Queen[16] and Kartinyeri v Commonwealth,[17] but also in Sue v Hill,[18] Victoria v Commonwealth[19] and other cases.

The approaching centenary is providing both the occasion and the funding for a new generation of Federation histories, supported by grants from the National Council for the Centenary of Federation and State committees. The aims of these centennial projects are far broader than lawyers’ professional interests in the history of the Constitution. Much of the emphasis is on raising the low levels of popular awareness of Federation and more recent Australian history. But the spread of funded research is wide enough to include more specialised projects, consistent with the National Council’s aim of filling gaps in Federation history and scholarship as well as supporting histories for a popular audience.

This centennial boom has the potential to provide new material for these legal disputes and to shape historical understandings of the Constitution. How that potential is being realised is the subject of this essay.

II THE CENTENARY COMPANION TO AUSTRALIAN FEDERATION

One of the biggest books to come out of the National Council for the Centenary of Federation’s history and education program so far is The Centenary Companion to Australian Federation. It is also one of the most beautiful. The rich colours of the dust jacket and the handsome layout and printing create an image of quality and authority.

Like the impressive design, the text on the back cover creates high expectations. ‘This is the first comprehensive, general history of Federation to be written’, it declares; ‘this significant book will become the authoritative work on Australian Federation’. It is unfair to judge a book by its blurb, let alone its cover, but the preface confirms the broad aims: ‘This book has been written as a “Companion” to the Centenary celebrations. It has two purposes: to make the story of Federation accessible to a popular readership, and to be the first comprehensive account of Federation.’[20]

The editor, Helen Irving, is the leader of the new Federation history. Her earlier book, To Constitute a Nation: A Cultural History of Australia’s Constitution (1997), placed Federation in a wide context of public values, aspirations, ideas and emotion that greatly enriched understanding of the Constitution’s origins. This approach, seeing the official steps towards Federation in the setting of contemporary life and imagination, is the inspiration for some of the most rewarding parts of the Centenary Companion for the general reader.

The book is very much a federal history of Federation. Separate chapters on each of the States make up the bulk of the text, emphasising their distinctive paths towards union in 1901. The chapters are largely chronological, tracing the course of events in each colony. This plan inevitably produces many overlaps. The basic story of the successive conferences and Conventions is told six times (seven, if you include the Introduction) from the points of view of the different colonies.

The chapter on New South Wales[21] is the longest of the six and provides the most detailed narrative of the key events. It is an engaging and well-crafted story of the combination of forces and events that promoted or inhibited Federation. Patterns of interpretation found here resonate in other chapters: political leaders campaign for or against Federation; economic and social trends create an environment for support, opposition or indifference; attitudes of voters and the population at large are explored through the press, public meetings and political organisations; and in this matrix crystallises the sequence of official actions that culminated in the inauguration of the Commonwealth in 1901. The delegates to the various conferences and Conventions naturally come in for special scrutiny, as each chapter explains what that colony’s delegates did and why.

If anything, the emphasis is more on formal, official activity than is usual in Irving’s writing. Henry Parkes and George Reid dominate the New South Wales chapter. Interestingly, Reid is more prominent here than Edmund Barton, even though Parkes and Barton are the two Irving singles out as ‘the great Federation leaders’ in her conclusion.[22] This may be because the sequence of conferences and drafts give the narrative its structure, hence putting the Premiers, as the heads of the channels of government communication, in the foreground. As Premier of New South Wales from 1894 to 1899, Reid, rather than Barton, was the one able to initiate government action and participate in the Premiers’ Conferences that were so important in 1895 and 1899. ‘Yes–No’ Reid emerges here not as the familiar equivocator who thwarted the 1898 referendum, but as a true supporter of Federation who successfully bargained for better terms for New South Wales. Barton, working to build up the federal movement while in opposition, fades into the background, although to contemporaries he was much the greater federalist.

Other chapters highlight particular facets of the Federation process. John Bannon’s chapter on South Australia makes special mention of the role and attitude of the press. James Warden emphasises the rise of popular sovereignty with the establishment of universal adult suffrage in Tasmania shortly after Federation, an event that he portrays as the completion of the dissolution of convict society. The reflections on the significance of the Federation era for the nature of government are welcome, although Warden surely overstates the importance of royal assent to the wider State franchise (significant though it was) as a moment of fundamental transformation: ‘[I]n 1904, with the assent of the Governor, the people of Tasmania ceased to be the governed and became the electors’, he writes, as if no one had been able to vote before.[23]

Writing about Victoria, Marian Quartly continues the interest in the liberal underpinnings of much political action of the 1890s. Stuart Macintyre’s work on Victorian political thought provides a fruitful starting-point.[24] In writing about the Australian Natives’ Association and the Federation Leagues, Quartly explores the organisations outside government that were working for Federation. As well as revealing the shape of formal public participation in the federal movement, she illuminates contemporary political ideals.

She agrees with Macintyre’s scepticism about the force and depth of popular involvement in the campaign leading to the referendums on the Constitution Bill. ‘The evidence of the campaigns for the Bill’, she says, ‘does not reveal an electorate in any sense independent of its leaders.’[25] In Quartly’s account of the Victorian Federation organisations, there are echoes of Helen Irving’s description of the ‘tenuous’ existence of the Central Federation League in Sydney.[26] The poor voter turnout in the elections for the 1897–98 Federal Convention receives special mention in several chapters.

Whether the Federation Leagues rose spontaneously from the people or channelled the initiatives of politicians (or, most likely, a bit of both), the point these authors make is best understood as a rejection of exaggerated claims for the popular movement rather than a denial of its significance. That the Federation Leagues existed and did as much as they did is an important part of Federation history, even if they shared the common vicissitudes of many political organisations.

Similarly, the formal provision for popular involvement in the last phase of the federal movement, after the failure of the 1891 Constitution Bill, was remarkable by contemporary standards. The authors highlight the election of the second Convention (aside from the Western Australian delegates), the choice of direct over indirect election of the Senate and the adoption of the referendum as the method of constitutional amendment. For some at the time, too, the debate over the powers of the Senate was one about the rights of a democratic majority represented in the Lower House. There is a connection between this new involvement and liberal political thought of the day. Marian Quartly notes it in the Victorian federal movement, for example:

So the Victorians came to the Convention hoping to construct a Constitution which gave final authority to the will of the people, understood as the wishes of the national majority. The Constitution they made was truly democratic, both in its constituency and in its mode of amendment.[27]

Quartly also captures the variety of opinions that this liberal approach embraced, notably on the question of votes for women. Activism by women’s groups and individual women is a theme of several chapters, complementing the earlier research edited by Helen Irving in A Woman’s Constitution? Gender and History in the Australian Commonwealth (1996). This is a question not just of women’s participation, but also of the aims of women’s political groups, which centred on the franchise but extended to liquor control, child welfare and other issues. The women who opposed Federation are also recognised.

The chapters on Queensland and Western Australia, the most hesitant participants in the Federation process, chart the most distinctive paths towards Federation. Writing about Queensland, Geoffrey Bolton and Duncan Waterson describe the ‘plethora of provincial fears and petty concerns that had led it to sulk in the corner from 1892 until 1899’, when it finally voted ‘yes’ by the narrowest margin of any of the colonies.[28] Yet they conclude that the State’s referendum record since Federation (beaten only by Western Australia in voting ‘yes’ to constitutional amendments) casts doubt on ‘the stereotype of Queensland and Western Australia as the recalcitrant members of the federal family’.[29]

Regional tensions worked against Federation in Queensland, but they had the opposite effect in Western Australia. By the end of the 1890s, the goldminers of Coolgardie and Kalgoorlie supported Federation, even to the point of proposing to join the Commonwealth as a separate State if the rest of Western Australia refused. In telling the story of these and earlier phases of the Federation movement in the West, Brian de Garis investigates the culmination of the manoeuvring by goldfields groups, Premier John Forrest and the other colonies in the negotiations on the Constitution Bill in London and elsewhere in 1900.[30]

The alphabetical entries take up much less of the Centenary Companion, occupying a little over 100 pages. They are necessarily brief, sometimes regrettably so. There are entries for every member of the Federal Conventions, but the lesser-known delegates earn only about 50 words each, barely enough to say where they came from and which Conventions they attended. Greater recognition depends very much on participation in debate. The Companion passes quickly over delegates who did not speak and gives little information about their backgrounds and personalities.

The other, longer entries are more rewarding. The more prominent federalists, and a few anti-federalists, are covered in detail, with occasional suggestions for further reading. Like the entries on themes, institutions and events, these are useful sources for key pieces of information and concise analysis. Some of the best reflect the editor’s policy of including subjects not normally thought of as part of the story of Federation: ‘Verse’, ‘Entertainment’, ‘Arches’ (in the inauguration celebrations), ‘Science’, ‘Sport’, ‘Temperance’, ‘Synods’ and ‘Music’. They bring back to life things that were inseparable from the period for contemporaries but that drop out of the history of the official steps towards Federation. Oddly, the longest entry is on New Zealand, which left me wishing other topics had been given the same scope.

Here and elsewhere, the book has not escaped the errors and inconsistencies that must dog any multi-author project. Some of the mistakes are legal ones. The alphabetical entry on the Colonial Laws Validity Act 1865 (UK) 28 & 29 Vict, c 63 suggests that, even before the enactment of the Statute of Westminster 1931 (UK) 22 Geo 5, c 4, s 51(xxxviii) of the Constitution provided a mechanism by which Australian legislators could ‘amend or repeal the application to the Australian Commonwealth of any imperial statute’,[31] but this overlooks the fact that the Colonial Laws Validity Act applied to Commonwealth legislation and preserved the overriding operation of British Acts of paramount force.[32] The entry on the Judicial Committee of the Privy Council attributes the Commonwealth’s power to abolish appeals from the High Court to the Privy Council to the Statute of Westminster, when in fact the power came from s 74 of the Constitution.[33]

Sometimes the problems are ones of inconsistency between different sections of the book. The New South Wales chapter says that the Federal Council of Australasia had ‘no legislative powers of its own’.[34] The alphabetical entry notes correctly that the Council was able to make laws that bound member colonies, but unfortunately it overlooks the fixed legislative powers of the Council (the model for five paragraphs of s 51 of the Constitution) and mentions only the additional power of any two or more colonies to refer matters for consideration.[35] The special majority required at a joint sitting under the 1898 Constitution Bill and the final version of the Constitution produces other contradictions. Was it an absolute majority or three-fifths in the Bill?[36] And was it two-thirds or an absolute majority in the Constitution?[37] (It was actually three-fifths in the 1898 Bill and an absolute majority in the Constitution.)

An alphabetical entry tells us that the current Australian flag did not become the official flag until 1953; it does not mention that the current design (minus the seventh point later added to one of the stars to represent the territories) was gazetted as ‘the Flag of the Commonwealth of Australia’ in 1903.[38] The frequently irresistible misspelling of the early name of Tasmania as ‘Van Dieman’s Land’ (actually Van Diemen’s Land) has crept into the endpaper maps. Accurately listing the dates when responsible government commenced in the different colonies proved too much for the introductory Timeline.[39] The date of 1855 for New South Wales is at least half right, in that it was the year in which the British Government authorised the new system, but it did not begin operation until 1856.[40] The date of 1857 given for South Australia, Tasmania and Victoria is accurate at most only for the first; the correct date for Tasmania is 1856, while the Governor appointed theoretically responsible ministries in 1855 in Victoria and 1856 in South Australia, although a fully-elected Parliament did not meet until the following year in each case.[41]

Dealing with the onset of the depression of the 1890s — a landmark in the move towards Federation — the chapter on Victoria mentions a dramatic incident: ‘Early one morning the young barrister Isaac Isaacs heard a pistol shot and found that his neighbour — owner of an empty office block in Collins Street — had shot himself in the head.’[42]

The future Chief Justice and Governor-General witnesses tragedy as the land boom collapses! Unfortunately for the interest of the story, it was not so. The suicide’s boarding house neighbour was Isaac Isaacs, tourist, not Isaac Alfred Isaacs, successful barrister.[43]

The balance between the alphabetical entries and the State chapters highlights the sometimes conflicting purposes of the Centenary Companion. The A–Z suffers from lack of space, which curtails both the range of topics and the space available for each. Expanding it would have made a better reference work, along the lines of the Oxford Companion to Australian History[44] and the forthcoming Oxford Companion to the High Court of Australia.[45] But the alphabetical entries are a reference tool and, as such, hardly likely to ‘make the story of Federation accessible to popular readership’ as the book intended.[46]

The section on general Federation history therefore gets much more space. Historians will doubtless debate whether it was well served by its State by State structure. General readers are not likely to plough through the successive accounts of all six States. This section also has an element of claiming for each State its special contribution to Federation. Helen Irving suggests that perhaps New South Wales ‘acted truly as the Mother, putting brakes upon her infant’s insistence on acquiring too soon the habits of adulthood, and thus preparing it better for ultimate independence’.[47] ‘At the end of the story as at the beginning, the Mother is still the mother’,[48] she writes, almost as if ‘The Mother State’ could be an appropriate centennial slogan for the State’s car registration plates.

Marian Quartly likewise sees a distinctive role for Victoria: ‘At best the Victorian federalists gave a democratic direction to national sentiment. They offered to the Australian people a sense of themselves as full participants in national life.’[49]

This approach has weaknesses as well as strengths. A short introduction to the book gives the overall sequence of events, but the State chapters result in a portrayal of Federation from State, rather than national, points of view. In one way, this is a source of valuable insight, but it is also a limitation, putting Federation behind a lens of State interests and State jealousies. It shows more of what the federalists were trying to escape — and how and why they succeeded — than of what they hoped to achieve.

Lawyers’ and historians’ interests diverge here. For lawyers, the interest of Federation lies in a particular kind of meaning, the meaning of the federal compact embodied in the Constitution. Their fixation on the intentions of the people of the 1890s may appear odd to historians more concerned with how and why Federation happened than what Federation was or how it was intended to operate.

These questions are, of course, related — showing why people voted ‘yes’ to Federation tells us something about their intentions and expectations — but the book says more about how the different colonies joined the Federation than about what it was they joined. The new Commonwealth is a hazy end point of the story, a kind of ‘happily ever after’ to follow the inauguration ceremonies. The full picture of its intended characteristics appears only in fragments such as the entry on the Constitution in the Federation A–Z. The significance of Federation in Australian history is also largely taken for granted, although Geoffrey Bolton and Duncan Waterson sketch some tantalising alternative histories, building on Geoffrey Blainey’s speculations about what might have happened if North Queensland had separated and refused to join the Commonwealth.[50]

Perhaps this is only to observe that the book is a companion to Federation, not to the framing of the Constitution, and that the two are not synonymous. The social and cultural aspects of Federation history go far beyond the long drafting process of the Constitution Bill. This more engaging wider history is naturally the focus for publishers and funding bodies catching the commemorative moment. Who would want to read a centenary companion to a piece of legislative drafting?

As it happens, some constitutional lawyers would, and other centennial projects are providing more specialised resources of this kind.

III THE NEW FEDERALIST

Another publishing project funded by the National Council for the Centenary of Federation (with support from other organisations) is a journal, The New Federalist: The Journal of Australian Federation History. As the Centenary Companion explains, the Federalist was the journal of the Tasmanian branch of the Australasian Federation League in the 1890s, taking its title from its rather more famous American predecessor.[51] The New South Wales Federal Association published the Australian Federalist. These journals inspire the title, if not the content, of the new publication.

The New Federalist is distinctive in several ways. The editors plan to publish just eight issues, ending in 2001. Most of the articles disseminate research, but other sections headed ‘Contemporary Addresses’ and ‘Reflections on Federation’ encourage a sense of occasion with comment on the centenary and its celebration. The journal also serves in a small way as a forum for notices about conferences and commemorations.

Issues follow a very rough chronological order. The four published to the time of writing have covered, among other miscellaneous topics, the Adelaide Convention of 1897, the referendum of 1899, proposals for the location of the national capital, and biographies of prominent and lesser-known Federation personalities. Four issues remain, two ‘marking the centenary of the final year of colonial Australia’ and two ‘to celebrate the first year of the twentieth century Commonwealth of Australia’.[52] A number of the articles originate in conferences held to mark the centenary.

Part of the purpose of the journal is to increase general knowledge of Federation. Like other recent authors on Federation history, the editors mention the 1994 ANOP survey of community knowledge and understanding of the Constitution, citizenship and civics, commissioned by the Department of Prime Minister and Cabinet to assist the Civics Expert Group chaired by Stuart Macintyre.[53] The survey found a high level of community ignorance about the system of government and its origins.[54]

Public education is an aim of the National Council for the Centenary of Federation and of the projects it has funded. Hence the title of the new journal’s first editorial, ‘Breathing Life into Federation History’, and the editors’ intention that ‘the topics and writing will be lively and accessible enough to have general appeal’.[55] The three-column layout with frequent illustrations (not always successfully reproduced), the jaunty editorial style and the occasionally inane magazine-style text subheadings brighten the appearance of the journal, which is welcome for all, not just newcomers to the field.

The cheerful production values are backed up by solid scholarship in the text. Like the Centenary Companion, The New Federalist reaches deep into contemporary archive and newspaper sources. The journal also publishes some original documents that are otherwise difficult to find. Speeches by Henry Parkes,[56] Alfred Deakin[57] and George Reid[58] appear in the first three issues, giving readers a sample of authentic Federation-era rhetoric. Issue four offers the minutes of the ‘secret’ Premiers’ Conference of 1898, which agreed on the amendments to the draft constitution after the unsuccessful referendum in New South Wales earlier the same year.[59] Each document comes with a helpful introduction.

The New Federalist does not purport to be a comprehensive history. It is necessarily more selective than the Companion, but where the two do overlap the journal complements the Companion with greater detail. The entry on the ‘secret’ Premiers’ Conference in the Federation A–Z, for example, provides an outline of the amendments agreed to there, but the details are in the minutes reproduced in The New Federalist.

Popular involvement in Federation, and contemporary ideas about popular involvement, are themes of several articles. Helen Irving writes about proposals for the use of the referendum;[60] biography or a significant event is the starting-point for reflections on contemporary political thought by Marian Quartly[61] and Frank Bongiorno.[62] Other topics of direct relevance to the Constitution include women’s suffrage[63] and telecommunications.[64] Sir Samuel Griffith is the subject of two noteworthy biographical articles.[65]

IV SOURCES

The Convention Debates remain the basic source for contemporary intentions in the writing of the Constitution. Nowhere else did the people of the time have so much to say about what they sought to achieve and the words they chose for the purpose. As an unusually complete record of constitution-making, though, they overshadow sources that historians in other countries are forced to use for want of a corresponding record of their own framing process. Gaps in the evidence of the proceedings of the Federal Convention of 1787, for example, have provided a stronger incentive to turn to other sources of contemporary political thought to elucidate the Constitution of the United States of America, with corresponding attention by historians and lawyers to the problems of applying them to constitutional interpretation.[66]

Nor should Australian lawyers familiar with the High Court’s former attitude to use of the Convention Debates need reminding of their shortcomings, noted by some of the framers themselves. Edmund Barton voiced what are now familiar objections when, in 1904, counsel attempted to rely on statements of Convention delegates. ‘The opinion of one member could not be a guide as to the opinion of the whole’, he said. ‘You could get opinions on each side from the speeches in debate.’[67] Although these objections are sometimes exaggerated, the Debates are only one part of the historical record. Other sources add much to the understanding of Federation issues, if usually less to the reasons for the presence of particular words in the text. They also reveal, as well as anything outside the constitutional text can, the understanding of those who did not write the Constitution, but voted to adopt it.

The scope of the potential sources would be enough to discourage anyone trying to put any particular feature of the Constitution in its full historical context, but at least they are becoming more accessible. For the widest research — which only a few have the opportunity to do — archives are essential. Federation: The Guide to Records, compiled by Stephen Foster, Susan Marsden and Roslyn Russell, greatly facilitates access to the archival record of Federation and the early years of the Commonwealth. It lists records by period, State and holding institution. An index gives access to the lists by names and by major themes. One of the best features of the guide is the detail it provides, even down to individual items in some collections. It is published in print and, in a much less useful format, online, through the National Archives of Australia.[68]

As for published sources, the valuable and concise entry on ‘Literature’ in the Centenary Companion is a thumbnail sketch of books the Convention delegates referred to and books about Federation. The select bibliography in To Constitute a Nation is extensive and complements Fin Crisp’s classic guide.[69]

Stuart Macintyre has delineated the contours of past writing about Federation history in Makers of Miracles, itself one of the most polished collections of essays on the subject.[70] An early celebratory phase, marked by ‘consciousness of taking part in momentous events of lasting significance’, did not last.[71] ‘Sometime between the early part of the century and the present, Federation lost its following. The efforts of those involved to secure a lasting place in national history proved unsuccessful.’[72]

The generally uncritical, and sometimes heroic, story told by the participants and later school history texts faced sceptical academic assessment after World War II. Historians examined the reasons, economic and other, motivating federationists and their opponents. Upbeat descriptions of Federation achievement became at least more complex, and perhaps less convincing, under this analysis of contemporary self-interest. ‘Reverence for the creation of the Commonwealth could hardly withstand immersion in such acid.’[73] Macintyre observes the indirect effect of left-wing centralist criticism of the Constitution and the High Court on perceptions of Federation. ‘The target was federalism rather than Federation,’ he notes, ‘but the original compact received glancing blows.’[74]

More recently, a ‘heroic popular account’[75] of Federation has revived, but it has also been diversified by studies of the role of race and gender in the popular movement and in the Federation era generally. Contributions of particular relevance to an understanding of the Constitution include A Woman’s Constitution?[76] and Citizens without Rights.[77] More Federation history is on its way, in particular, John Williams’ collection of annotated source documents, Geoffrey Bolton’s biography of Edmund Barton and John Hirst’s history of Australian Federation (all supported by the National Council for the Centenary of Federation).

Writers in legal journals are making increasing use of these historical resources in the interpretation of the Constitution. To give just a few examples, Kim Rubenstein has explained the historical origins of constitutional provisions connected with citizenship, pointing out their relevance to current debates;[78] Haig Patapan has done the same for fundamental rights, going on to draw implications for the current role of the courts;[79] Rowan McMonnies has outlined historical support for a particular interpretation of s 90;[80] and Fiona Wheeler has analysed the comments of the framers on separation of powers, finding them consistent with modern doctrine but so ambiguous and fragmentary that other reasons for decision have to carry greater weight.[81] The Convention Debates remain the basic historical source for these authors. Where they range beyond them, it is usually into other legal sources rather than into the wider historical record or the writings of historians.

V CONCLUSION: THE NEW HISTORY

The framers of the Australian Constitution, unlike their US and Canadian counterparts, decided to open their debates to the public and to have parliamentary shorthand writers take down and publish their words. The existence of this record makes Australia a living counterfactual for North American arguments about evidence of original intent in constitutional interpretation. ‘If the Framers ... had wanted their country and posterity to construe the Constitution in the light of their deliberations,’ said Leonard Levy, writing about the United States, ‘they would have had a stenographer present to keep an official record, and they would have published it.’[82] Yet this is exactly what the Australian framers did. We have their words in fascinating and often numbing detail. Is the record evidence, not only of the delegates’ intentions, but also of their desire to tell future generations what the Constitution really meant?

The answer is pretty clearly ‘no’. The reasons given for opening the debates were pragmatic and contemporary. Secrecy, delegates thought, would provide grounds for suspicion and hostility; open access would improve the chances that the people would support their decisions.

If the public know that all our proceedings are subject to outside criticism, there will be no feeling that this is a secret conclave to take away the liberties of the public. We will take the people with us a long way in any course which members desire to carry out, if we admit the press and public to all our proceedings.[83]

The delegates did not say that the public had a right to know what they said. Less still did they suggest they were telling future judges how to read the Constitution.

The Convention Debates remain a central source for contemporary understandings of the Constitution. They are the most detailed record of the way its words were chosen and hence contain vital information about what the framers thought it meant. Nor has any recent work rivalled John La Nauze’s The Making of the Australian Constitution as the classic history of the drafting process. However, those who believe in fidelity to Federation-era intentions for the Constitution must look more widely than the Convention Debates alone. Context helps interpret the Debates, giving clues to the way language was used and the issues the Convention responded to. Nor are the delegates’ intentions the only relevant ones. There are also the attitudes of the voters, who endorsed their draft, and even the intentions of the British Parliament, which enacted it.

It is in shaping understanding of this broader Federation context that the new histories will have their main impact. A few of the recent publications, certainly, throw direct light on features of the Constitution of interest to the courts, but almost all of them go to create perceptions of Federation that will have gradual and indirect but nevertheless pervasive effects on lawyers’ understanding of the making of the Commonwealth.

What sort of Federation story are the new sources telling, and what image of the Constitution will they leave lawyers with? One persistent theme is popular involvement in the process of Federation. In itself this is nothing new. From Quick and Garran[84] onwards, historians have written about the popular movement that accompanied (or caused, depending on point of view) the revival of Federation after the failure of the Bill drafted at the 1891 Federal Convention.[85] Recent writers articulate more clearly what popular involvement in Federation did and did not amount to, and emphasise how notable it was when compared with other countries. According to Helen Irving, for example, ‘it was the first time in history that the members of a proposed nation had been directly asked to consider the constitution upon which that nation was to be founded’.[86]

Direct election of most members of the Federal Convention of 1897–98 and approval of the Constitution by referendum made Federation a remarkably inclusive process for its time, even though exclusions from the franchise meant that the vote was barely democratic by modern standards. Direct election of both houses and use of the referendum for constitutional amendment continued the popular theme for the future.

It was a constitution the Australian voters gave themselves, not one the British Parliament gave them. Its amendment and enactment in London were legally but not politically weighty. The recent writers observe that Britain did not figure largely in the Federation movement. ‘Despite the legal necessity of British enactment of the Australian Constitution Bill, there is a surprising absence of reference to Britain throughout the Convention Debates and the referendum campaigns’, wrote Helen Irving in 1997.[87] The Centenary Companion bears this out. The amendments to the Constitution Bill forced by the British Government in 1900 were not fundamental, and Federation was not seen as weakening Australia’s ties to the Empire.

Nor, to make another obvious centennial comparison, was it seen as taking Australia towards a republic. Republicanism was even weaker in the 1890s than it had been during its brief flowering in the previous decade (even though the Secretary of State for the Colonies did have to reassure Queen Victoria that the name ‘Commonwealth’ did not imply any anti-monarchical intention).[88]

This ‘popular’ reading of the origins and content of the Constitution has implications for recent debates about popular sovereignty.[89] That the Federation movement drew its authority from the voters and gave them a direct veto over constitutional amendment makes it easier to conclude that the source of authority for the Constitution itself lies with them. More contentiously, giving priority to the people in the making and working of the Constitution may aid a climate of interpretation favouring further implications from its text along the lines of the implied freedom of political communication. Freedom of association and access to government information have already attracted attention, to mention only two of the more conservative possibilities.[90]

Other themes of the recent writing have less obvious, or more awkward, implications. Constitutional interpretation aims to produce a single meaning, but historians find diverse experiences of Federation in different groups and different places. The separate State chapters in the Centenary Companion embody this approach, exploring divergence and distinctiveness. In her preface to the Centenary Companion, Helen Irving foreshadows even more localised history:

Many more histories will and should be written. In particular, local histories — the contribution of individual towns and regions to Federation — remain to be researched and written. Ideally, there should be hundreds of such histories, written on the ground by local historians themselves who will understand best the relation between regional cultures, local personalities and political movements.[91]

The regional focus of much of the research here and in The New Federalist emphasises difference; the Constitution, on the other hand, was framed as a common denominator, a national framework that the people of the colonies could agree on despite their diversity.

The legal expression of this diversity was federalism itself. The differences between the colonies that made Federation difficult to achieve also committed many Convention delegates, and their supporters, to a type of federalism that preserved a high degree of State autonomy. The rejection of the Canadian model for the federal distribution of powers — perceived by the Australian framers as centralist — was one of the results. In the minds of many at the time, the Commonwealth Government would be small and cheap to run and the States would keep a major, if ill-defined, role. Greg Craven finds evidence of this throughout the Convention Debates: ‘This theme of strongly co-ordinate, State-oriented federalism — highly relevant in the interpretation of the Constitution — emerges forcefully and incessantly from the Convention Debates, beyond the slightest hope of confusion.’[92] Since the Engineers’ Case,[93] though, these contemporary ideas about the respective powers of the Commonwealth and the States have passed into the category of unfulfilled expectations rather than binding intentions expressed in the Constitution.

Historians explore other intentions harder to fit into the celebratory mode of the centenary. The modern rejection of Federation political ideals is nowhere more apparent than on questions of race. ‘One of the goals of federationists’, the Centenary Companion’s alphabetical entry on ‘White Australia’ explains, ‘was for Australia to be populated exclusively by “white” men and women.’[94] The recent argument in Kartinyeri v Commonwealth[95] about the possibility of enacting legislation detrimental to indigenous people under s 51(xxvi) of the Constitution is a legal crystallisation of wider questions about the framers’ intentions and their current significance. Dealing with these intentions in the interpretation of s 51(xxvi), and more generally, is a legacy of Federation history just as much as the implementation of the framers’ more laudable democratic ideals.

The new history also highlights Federation positions on the participation of women in the political process. This issue was the subject of more debate than the drawing of the racial boundaries of federated Australia, debate which culminated in the granting of the Commonwealth franchise to non-Aboriginal women by the Commonwealth Franchise Act 1902 (Cth). But the absence of women from the Federal Conventions and their exclusion from voting in most colonies remain the largest single deficit in the vaunted democratic basis of the Constitution.

Another absence from the Federation debate is of more interest to lawyers than historians. In comparison with more recent constitutions, the most striking silence (albeit partial) of the framers and the Constitution is on the question of basic rights. The Federal Convention of 1897–98 rejected guarantees of due process and equal protection of the laws in an inarticulate debate mainly concerned with the associated guarantee of equal rights for residents of different States (found now in s 117). One of the main arguments against equal protection of the laws was that it would prevent discrimination on grounds of race or colour, something the delegates particularly wanted to allow.[96] As for due process, one opponent argued that such a guarantee in the Constitution would be somehow embarrassing:

I repeat that the insertion of these words would be a reflection on our civilization. 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.’[97]

The Constitution relies instead on Parliament as the guardian of the rights of the people, such as they are. Its inspiration is very different from the conception, central to many other constitutions, of an entrenched bill of rights as a legal standard against which government is judged and a framework for questions of public policy. Even the Convention Debates’ one explicit reference to the common law as a protection of what we would call human rights shows Parliament in ultimate control.[98] Nor should this be surprising. The Constitution’s few express guarantees of basic rights, the Conventions’ ultimate choice of amendment by referendum and direct election for both Houses of the Commonwealth Parliament, and the popular participation in the making of the Commonwealth, are consistent with the liberal political thinking of the 1890s described by recent authors.

What the new Federation history reveals is a Constitution more fully of its time: the product of a process of public deliberation and participation that is still remarkable, for all its failings; setting out the federal compromises reached to bring the scattered colonies into the Commonwealth; expressing the imperial loyalty, racial beliefs and acceptance of Parliament-centred government that characterised politicians and voters; and, perhaps most importantly, creating a framework of popular sovereignty through which government could work for different ends as values changed.

It is here that the new Federation history so far makes its greatest contribution. To adapt the Privy Council’s phrase,[99] it affects the law mainly through the silent operation of constitutional perceptions. It places the Constitution more firmly in its historical context and informs judgments about the relevance of that context in constitutional debates of our own time.

JOHN WAUGH[*]


[1] Municipal Council of Sydney v Commonwealth [1904] HCA 50; (1904) 1 CLR 208, 213–14 (during argument).

[2] Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329, 333 (Griffith CJ during argument); Henry Burmester, ‘The Convention Debates and the Interpretation of the Constitution’ in Gregory Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (1986) 25, 26–31.

[3] (1971) 124 CLR 468.

[4] Leslie Zines, ‘Book Review: The Making of the Australian Constitution[1972] FedLawRw 13; (1972) 5 Federal Law Review 158, 160.

[5] Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360, 385.

[6] Gregory Craven (ed), Official Record of the Debates of the Australasian Federal Convention (first published 1891–98, 1986 ed); Parliament of Australia, Senate, Records of the Australasian Federal Conventions of the 1890s <http://www.aph.gov.au/senate/pubs/records.htm> at 31 October 2000.

[7] See Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (1997) 25 Federal Law Review 1, 13–15; James Thomson, ‘Constitutional Interpretation: History and the High Court — A Bibliographical Survey’ [1982] UNSWLawJl 17; (1982) 5 University of New South Wales Law Journal 309, 310.

[8] King v Jones [1972] HCA 44; (1972) 128 CLR 221, 229, cited in Eastman v The Queen [2000] HCA 29; (2000) 172 ALR 39, 67 (McHugh J).

[9] Eastman v The Queen [2000] HCA 29; (2000) 172 ALR 39, 70 (McHugh J).

[10] Ibid 72.

[11] Ibid.

[12] Ibid 96–7.

[13] Justice Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1, 14.

[14] Ibid (citation omitted).

[15] Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 400 (Kirby J); Re Wakim; Ex parte McNally [1999] VSC 227; (1999) 163 ALR 270, 285 (McHugh J); Eastman v The Queen [2000] HCA 29; (2000) 172 ALR 39, 68–9 (McHugh J).

[16] [2000] HCA 29; (2000) 172 ALR 39.

[17] [1998] HCA 22; (1998) 195 CLR 337.

[18] [1999] HCA 30; (1999) 163 ALR 648.

[19] (1996) 187 CLR 416.

[20] Helen Irving (ed), The Centenary Companion to Australian Federation (1999) v.

[21] Helen Irving, ‘New South Wales’ in Helen Irving (ed), The Centenary Companion to Australian Federation (1999) 19.

[22] Ibid 87.

[23] James Warden, ‘Tasmania’ in Helen Irving (ed), The Centenary Companion to Australian Federation (1999) 187, 195.

[24] Stuart Macintyre, ‘After Corowa’ (1994) 65 Victorian Historical Journal 98.

[25] Marian Quartly, ‘Victoria’ in Helen Irving (ed), The Centenary Companion to Australian Federation (1999) 219, 278. See Stuart Macintyre, above n 24. Cf John Hirst, ‘Federation and the People: A Response to Stuart Macintyre’ in Commonwealth, Department of the Senate, The People’s Conventions: Corowa (1893) and Bathurst (1896), Papers on Parliament No 32 (1998) 80.

[26] Irving, ‘New South Wales’, above n 21, 54.

[27] Quartly, above n 25, 277–8.

[28] Geoffrey Bolton and Duncan Waterson, ‘Queensland’ in Helen Irving (ed), The Centenary Companion to Australian Federation (1999) 93, 122.

[29] Ibid. The authors’ figures mistakenly include the World War I conscription plebiscites, which were not referendums on amendments to the Constitution. Their point remains correct for the referendum record as a whole, although not for referendums after 1967.

[30] Brian de Garis, ‘Western Australia’ in Helen Irving (ed), The Centenary Companion to Australian Federation (1999) 285.

[31] Irving, Centenary Companion, above n 20, 347.

[32] Union Steamship Co of New Zealand Ltd v Commonwealth [1925] HCA 23; (1925) 36 CLR 130, 140–1 (Knox CJ), 152 (Isaacs J), 154 (Higgins J), 163 (Rich J), 164 (Starke J). See also Port MacDonnell Professional Fishermen’s Association v South Australia [1989] HCA 49; (1989) 168 CLR 340, 378.

[33] Irving, Centenary Companion, above n 20, 389. Cf Kitano v Commonwealth [1975] UKPCHCA 2; (1975) 132 CLR 231, 233–4 (PC); A-G (Cth) v T & G Mutual Life Society Ltd [1978] HCA 24; (1978) 144 CLR 161, 170 (Gibbs ACJ, Mason and Jacobs JJ), 180–1 (Stephen J), 185 (Murphy J), 200 (Aickin J).

[34] Irving, ‘New South Wales’, above n 21, 27.

[35] Irving, Centenary Companion, above n 20, 362. See Federal Council of Australasia Act 1885 (UK) 48 Vict, c 60, ss 15–16 and Australian Constitution s 51(x), (xxiv), (xxv), (xxviii), (xxx).

[36] Irving, ‘New South Wales’, above n 21, 81; Quartly, above n 25, 268.

[37] Irving, ‘New South Wales’, above n 21, 81; Irving, Centenary Companion, above n 20, 410.

[38] Commonwealth of Australia Gazette, 20 February 1903, 93.

[39] Irving, Centenary Companion, above n 20, viii–xii.

[40] Brian Dickey, ‘Responsible Government in New South Wales: The Transfer of Power in a Colony of Settlement’ (1974) 60 Journal of the Royal Australian Historical Society 217, 222–6.

[41] W A Townsley, ‘The Governor, Cabinet and the Administration’ in F C Green (ed), A Century of Responsible Government 1856–1956 (1956) 239, 244; Edward Jenks, The Government of Victoria (Australia) (1897) 208–16; Gordon Combe, Responsible Government in South Australia (1957) 72–7.

[42] Quartly, above n 25, 241.

[43] Proceedings of Inquest Held upon the Body of Thomas Patrick Fallon at Melbourne Hospital 5 January 1892, Public Record Office of Victoria, VPRS 24/P0, unit 591, file 24/1892.

[44] Graeme Davison, John Hirst and Stuart Macintyre (eds), The Oxford Companion to Australian History (1998).

[45] Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (forthcoming).

[46] Irving, Centenary Companion, above n 20, v.

[47] Irving, ‘New South Wales’, above n 21, 87.

[48] Ibid.

[49] Quartly, above n 25, 278.

[50] Bolton and Waterson, above n 28, 99, citing Geoffrey Blainey, A Land Half Won (1980)

198–203.

[51] Irving, Centenary Companion, above n 20, 362–3.

[52] John Bannon and John Williams, ‘Broadening Australia’s Federation Commemoration’ (1999) 4 The New Federalist 1, 1.

[53] John Bannon and John Williams, ‘Breathing Life into Federation History’ (1998) 1 The New Federalist 2.

[54] Civics Expert Group, Whereas the People: Civics and Citizenship Education (1994) 132.

[55] Bannon and Williams, ‘Breathing Life into Federation History’, above n 53, 3.

[56] ‘The Tenterfield Oration of Henry Parkes’ (1998) 1 The New Federalist 71.

[57] ‘Alfred Deakin’s Speech to the Annual Conference of the Australian Natives’ Association, Bendigo, 1898’ (1998) 2 The New Federalist 66.

[58] ‘Yes–No Reid’ (1999) 3 The New Federalist 88.

[59] ‘The Secret Premiers’ Conference of 1899’ (1999) 4 The New Federalist 104.

[60] Helen Irving, ‘Referendums in the Air: New South Wales in June 1898’ (1998) 2 The New Federalist 9.

[61] Marian Quartly, ‘The ANA’s Bendigo Banquet: A Democratic Moment?’ (1999) 3 The New Federalist 9.

[62] Frank Bongiorno, ‘From Republican to Anti-Billite: Bernard O’Dowd and Federation’ (1999) 4 The New Federalist 49.

[63] Jan Roberts, ‘Maybanke Anderson and Federation’ (1998) 2 The New Federalist 41.

[64] Kevin Livingston, ‘The Communication Revolution, the Adelaide Convention and the Constitution’ (1998) 2 The New Federalist 24.

[65] John Williams, ‘Samuel Griffith and the Australian Constitution: Shaking Hands with the New Chief Justice’ (1999) 4 The New Federalist 37; Geoffrey Bolton, ‘Sir Samuel Griffith: Behind the Scenes Operator’ (1999) 4 The New Federalist 45.

[66] See Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996) 18–20.

[67] Municipal Council of Sydney v Commonwealth [1904] HCA 50; (1904) 1 CLR 208, 213 (Barton J during argument).

[68] S G Foster, Susan Marsden and Roslyn Russell (eds), Federation: The Guide to Records (1998) <http://www.naa.gov.au/Publications/Research_Guides/fedguide/navigation/index.htm> at 31 December 2000.

[69] Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (1997) 240–8; L F Crisp, Federation Fathers (1990) 369–454.

[70] Stuart Macintyre, ‘The Fortunes of Federation’ in David Headon and John Williams (eds), Makers of Miracles: The Cast of the Federation Story (2000) 3.

[71] Ibid 5.

[72] Ibid 7.

[73] Ibid 12.

[74] Ibid 13.

[75] Ibid 14.

[76] Helen Irving (ed), A Woman’s Constitution? Gender and History in the Australian Commonwealth (1996).

[77] John Chesterman and Brian Galligan, Citizens without Rights: Aborigines and Australian Citizenship (1997).

[78] Kim Rubenstein, ‘Citizenship and the Constitutional Convention Debates: A Mere Legal Inference’ (1997) 25 Federal Law Review 295.

[79] Haig Patapan, ‘The Dead Hand of the Founders? Original Intent and the Constitutional Protection of Rights and Freedoms in Australia’ (1997) 25 Federal Law Review 211.

[80] Rowan McMonnies, ‘Ngo Ngo Ha and the High Court v New South Wales: Historical Purpose in History and Law’ (1999) 27 Federal Law Review 471, 474–81.

[81] Fiona Wheeler, ‘Original Intent and the Doctrine of the Separation of Powers in Australia’ (1996) 7 Public Law Review 96.

[82] Leonard Levy, Original Intent and the Framers’ Constitution (1988) 2.

[83] Official Report of the National Australasian Convention Debates, Sydney, 3 March 1891, 12 (George Dibbs).

[84] John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (first published 1901, 1976 ed).

[85] See Brian de Garis, ‘How Popular Was the Popular Federation Movement?’ in Commonwealth, Department of the Senate, Parliament and the Constitution: Some Issues of Interest, Papers on Parliament No 21 (1993) 101.

[86] Irving, ‘Referendums in the Air’, above n 60, 9.

[87] Irving, To Constitute a Nation, above n 69, 206.

[88] J A La Nauze, ‘The Name of the Commonwealth of Australia’ (1971) 15 Historical Studies 59, 62.

[89] See, eg, George Winterton, ‘Popular Sovereignty and Constitutional Continuity’ [1998] FedLawRw 1; (1998) 26 Federal Law Review 1; Leslie Zines, ‘The Sovereignty of the People’ in Michael Coper and George Williams (eds), Power, Parliament and the People (1997) 91.

[90] See Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 68–70 (Dawson J), 88–93 (Toohey J), 114–21 (Gaudron J), 142 (McHugh J), 156–7 (Gummow J); Richard Jolly, ‘The Implied Freedom of Political Communication and Disclosure of Government Information’ [2000] FedLawRw 2; (2000) 28 Federal Law Review 41.

[91] Irving, Centenary Companion, above n 20, vii.

[92] Greg Craven, ‘The Convention Debates — Still More Sinned against Than Sinning’ (1998) 1 The New Federalist 67, 69.

[93] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129.

[94] Irving, Centenary Companion, above n 20, 433.

[95] [1998] HCA 22; (1998) 195 CLR 337.

[96] Official Record of the Debates of the Australasian Federal Convention, Melbourne, 8 February 1898, 687 (Isaac Isaacs).

[97] Official Record of the Debates of the Australasian Federal Convention, 8 February 1898, Melbourne, 688 (John Cockburn).

[98] Official Record of the Debates of the Australasian Federal Convention, 2 March 1898, Melbourne, 1776 (Josiah Symon and Henry Higgins).

[99] Cooper v Stuart (1889) 14 App Cas 286, 293.

[*] LLB (Hons), BCom, BA (Hons), LLM (Melb), M Phil (Cantab); Barrister and Solicitor of the Supreme Court of Victoria; Senior Lecturer, Law School, the University of Melbourne.


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