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Item: Printed Item: 029272; Online Text: 898863
Title: The Constitution: 19th century Colonial Office document or a people's Constitution?
Author: TWOMEY, Anne
Source: BACKGROUND PAPERS (LAW AND PUBLIC ADMINISTRATION GROUP)
Cover date: 25 August 1994
Volume: 15/1994 Page no.: (38p)
Major subject: Great Britain / POL / LEG / ADM; Chronology / LEG; Constitution / POL
Minor subject: Community participation; Political participation; Referenda; Federal issue; State issue; Constitutional Convention; History; Federation (1901) Enrichment: Colonial Office (GB);
Key item: Yes
Date: 25 August 1994
MP: No
Speech: No
Text online: Yes
Citation id: 3AU10
Database: Library Publication
Ref:
CONTENTS
Executive Summary
Introduction
The genesis of federation:
The Federal Council of Australasia
The Tenterfield speech
The Melbourne Conference of 1890
Preparation for the National Australasian Convention of 1891
Delegates to the National Australasian Convention of 1891
The National Australasian Convention
The reaction to the draft 1891 Constitution
The popular movement for federation
The Enabling Acts
The election of delegates
The Adelaide Convention of 1897
Parliamentary scrutiny of the 1897 Adelaide draft
The response of the British Colonial Office
The Sydney Convention of 1897
The Melbourne Convention of 1898
The referendum campaign
The 1898 referendum results
The second referendum round
Who voted in the referendum?
Qualifications to vote
Additional property qualifications
Disqualification of voters
Voluntary voting
The proportion of the population that voted for the Constitution
The imperial enactment of the Constitution
Western Australia's decision to join the federation
Federation
Is the Constitution a 19th Century Colonial Office Document?
Is the Constitution a 'people's Constitution'?
Conclusion
Appendix
List of 1993 and 1994 PRS Publications
Executive Summary
In the recent debate upon whether Australia should be a constitutional monarchy or a republic, the attention of the public has been directed towards the process by which the Australian Constitution was formed. On the one hand it has been suggested that the Constitution is a piece of 19th century imperial drafting designed by the British Colonial Office. On the other hand, it has been argued that it is a 'people's Constitution' because the people participated in its formation and in its acceptance, by means of referendum.
This paper traces the path towards federation, from the first federal approach demonstrated by the creation of the Federal Council of Australasia in 1885, to the enactment of the Australian Constitution by the British Parliament. It discusses the different stages in the development of the Constitution, from the preliminary drafts of Andrew Inglis Clark and Charles Kingston, to the Constitutional Conventions of 1891 and 1897-98 where the Constitution was debated, drafted and amended, to the final amendments which took place in London before its enactment by the Westminster Parliament.
The main focus of the paper is the extent to which the Australian people participated in the formation and acceptance of the Constitution, and the role and influence of the Colonial Office in this process.
The claim that the Constitution is a 'people's Constitution' is usually based on the fact that delegates to the 1897-98 Constitutional Conventions were directly elected by the people and that the Constitution was approved by the people in referenda. However, the structure of the federation and the primary substance of the Constitution had been decided well before the first vote was cast.
When Sir Henry Parkes first proposed the Conference of 1890, which set off the process of federation, he already had a clear idea of the type of federation, which would be established. It was to be similar to that of Canada, with a Governor-General and a Parliament consisting of a Senate and a 'House of Commons'. Early draft Constitutions prepared by Andrew Inglis Clark and Charles Kingston contained provisions to establish a Senate with equal representation of the States and a House of Representatives directly elected by the people in electorates of approximately equal populations. Other substantive aspects of the Constitution were settled in the Constitutional Convention of 1891 by representatives of the Parliaments of the Colonies.
It was not until federation became bogged down in the Colonial Parliaments that 'the people' first became actively involved. Federation leagues were established in towns along the border between New South Wales and Victoria, amongst people who were directly affected by the tariff and trade problems of the different colonial Governments. They held a Conference at Corowa in 1893, which called for the direct involvement of the people in federation through the popular election of delegates to a new Constitutional Convention, which would re-draft the Constitution, and put it to the people in a referendum.
This plan was adopted by the colonial Premiers in 1895, and elections to the Convention were held in 1897 in New South Wales, Victoria, South Australia and Tasmania. The Western Australian Parliament did not wish to involve the people through direct elections, so it appointed its own delegation to the Convention. Queensland did not participate at all in the Conventions of 1897-98.
The Constitutional Conventions of 1897-98 revised the previous draft Constitution, and although they made some significant changes and additions, the structure and scope of the Constitution had already been determined.
The degree to which the delegates to the Convention were representative of 'the people' is debateable. All the delegates were men. Women were only eligible to vote or stand for election in South Australia. Although one South Australian woman was a candidate, she was not elected. All the delegates were, or had been, members of Parliament, except one who was elected for his expertise in financial matters. Of the many Labour Party candidates who stood for election, only one of them succeeded. The Labour Party generally did not support federation on the terms which had been proposed, and was particularly critical of the Senate.
The revised Constitution that was adopted by the Convention was put to the people of New South Wales, Victoria, South Australia and Tasmania in referenda held in 1898. Although it was passed by a majority in each colony, it did not reach the requisite majority in New South Wales, where technically it failed. Western Australia had referred the Constitution Bill back to the Parliament, rather than the people, and Queensland was still unwilling to commit itself. After some further revisions, the Constitution was again put to a referendum. This time Queensland participated, but Western Australia still declined. The referendum was passed in the five colonies. Western Australia did not hold its referendum until after the Constitution had been enacted by the Westminster Parliament, but before it came into force.
The level of popular participation in the referenda was again limited. Although the franchise was extremely liberal for its time, it still excluded significant portions of the population, such as the majority of women, Aborigines, and those in receipt of charity. As there was no compulsory voting, the number of those eligible to vote, who did actually vote, was relatively low. Accordingly, those who voted for the Commonwealth Constitution probably would not satisfy our current notion of 'the people'.
The involvement of the Colonial Office in the drafting of the Commonwealth Constitution was more passive than active. The framers of the Constitution were all brought up in the tradition of imperial drafting and were aware that the Constitution had to be drafted in a form acceptable to the Colonial Office and the Westminster Parliament for it to be enacted. The influence of the Colonial Office was therefore often manifested through the anticipation of the framers of the Constitution as to what would be acceptable.
This is not to say that the framers of the Constitution did not exert a degree of independence. The very fact that the Constitution Bill was drafted in Australia rather than in London where the Canadian Constitution was drafted, indicated the desire of the Australian framers to produce their own Constitution. They also included several innovative aspects which were unknown to Westminster systems, such as the use of a referendum to amend the Constitution.
The Colonial Office's active interference in the development of the Australian Constitution took place at two stages. The first stage was after the Adelaide Convention of 1897 when a draft Constitution was sent to the Colonial Office. The Colonial Office was critical of several aspects of the Constitution, but instead of presenting its objections to the Convention when it reconvened in Sydney, it secretly passed on three documents outlining its concerns to one of the leading members of the Convention, George Reid. Reid then raised most of the Colonial Office's criticisms in the Constitutional Convention as if they were his own. Through this means the Colonial Office achieved influence over the drafting of the Constitution without revealing its hand.
The second stage at which the Colonial Office intervened was when the Constitution Bill was presented to the Westminster Parliament for enactment. The Colonial Office insisted on several amendments, the major one being the widening of the scope for appeals to the Privy Council. After much debate between the Colonial Office and the Australian delegates, who argued that the Constitution could not be amended because it had already been approved in its original form by referenda, certain changes to the Constitution were negotiated, and the Constitution was then enacted by the Westminster Parliament.
While the Colonial Office, therefore, did exert some influence on the Constitution, it is still the case that almost all the Constitution was written in Australia, by Australians and for Australia.
Introduction
At a dinner to commemorate the centenary of the Corowa Conference, held in July last year, Prime Minister Keating described that Constitution as 'complex, legalistic and virtually impossible to relate to contemporary Australian life'. He went on to state:
It was framed as a routine piece of 19th century British imperial legislation. It shows its age. 1
In a talk to school children on 15 June 1994, the Prime Minister said:
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. 2
These comments sparked discussion about the process through which the Australian Constitution was formed and the level of British involvement and influence in that process. Many have argued that the Australian Constitution is a 'people's Constitution', due to the involvement of the people in the election of delegates to the Constitutional Conventions and the approval of the Constitution by referenda.
This paper summarises the historical evolution of the Constitution. It is based primarily on the contemporary accounts contained in the great work of Quick and Garran 3 and the later important historical work of Professor La Nauze. 4 While it addresses the main issues and controversies of the time, the focus of the summary is the level of popular involvement in the formation of the constitution as well as the level of British influence and involvement. The aim of the paper is to dispel some of the myths that have recently arisen about the genesis of the Constitution, and to add a level of sophistication to the debate on the subject.
The genesis of federation: the Federal Council of Australasia
One of the early catalysts for federation was the rumours that circulated in 1883 of French and German interest in annexing New Guinea and other islands in the vicinity of Australia. It was also suggested that the French were about to transport prisoners to New Caledonia.
Concerns about Australian security led to the meeting of a Convention on 28 November 1883, at which the Australian colonies, New Zealand and Fiji were represented. The Convention concluded that the time for full federation had not yet arrived, but proposed the formation of a Federal Council of Australasia with powers including the prevention of the influx of criminals and the power to enter into relations with the islands of the Pacific.
The Council was established by the Imperial Federal Council of Australasia Act 1885. In addition to powers dealing with the influx of criminals and relations with Pacific Islands, the Council was given powers over fisheries outside the territorial limits, the enforcement of judgments throughout the Colonies and the extradition of offenders. The Act only applied to a colony if it was adopted by its colonial Parliament. Legislation adopting the Federal Council of Australasia Act 1885 was passed by Queensland, Tasmania, Victoria, Western Australia and Fiji. New South Wales and New Zealand refused to join the Council. South Australia joined for two years from December 1888 to 1890, but after that its membership lapsed.
The Tenterfield speech
The failure of New South Wales to join the Council undermined its existence from the start. Sir Henry Parkes, the Premier of New South Wales, wanted full federation rather than the compromise of a Council. At Tenterfield, on 24 October 1889, Parkes used the defence concerns raised in a report earlier that year by Major-General Edwards as the spur for federation. He argued that to ensure the security of the colonies, a strong federal executive must be created. He recommended the holding of a Convention, to which leading men would be appointed by the Parliaments of the colonies. He envisioned that this Convention would devise a Constitution to establish a Federal Government and a Federal Parliament.
Parkes then wrote to the other Premiers on 30 October 1889, inviting them to appoint representatives to the Convention. In these letters he expressed the following view of the system of Government that he hoped the Convention would devise:
The scheme of federal government, it is assumed, would necessarily follow close upon the type of the Dominion Government of Canada. It would provide for the appointment of a Governor-General, for the creation of an Australian Privy Council, and a Parliament consisting of a Senate and a House of Commons. 5
The other Australian colonies were reluctant to abandon the Federal Council and establish a new Convention, so they suggested that New South Wales join the Council, or at least meet with the Council to discuss a scheme of federation.
As a form of compromise, Sir Henry Parkes agreed to an 'informal meeting of the colonies for the purposes of preliminary consultation'. 6
The Melbourne Conference of 1890
This 'informal meeting' became a Conference that met in Melbourne on 6 February 1890. Two representatives of each of the Australian colonies and New Zealand attended. The Conference met for seven days, and during this time the main subject of debate was whether the colonies should join in a federation. The delegates generally favoured the idea of federation, although there were those who considered that there was not enough detail about the kind of federation being proposed.
The Conference resolved to establish a National Australasian Convention with authority to consider and report upon an adequate scheme for a Federal Constitution.
Preparation for the National Australasian Convention of 1891
Before the Convention commenced, work had already been undertaken to collect information to assist the delegates in understanding the different ways of structuring a federation.
In addition, the Tasmanian Attorney-General, Andrew Inglis Clark, prepared a draft Constitution which was circulated to some of the delegates. It was written in the same form and language as an Act of the Imperial Parliament, and consisted of clauses extracted and adapted from the British North America Act (which was the Canadian Constitution), the United States Constitution, the Federal Council of Australasia Act 1885, and the Constitutions of the Australian colonies. Each exemplified imperial drafting techniques, with the exception of the United States Constitution.
The familiar structure of a House of Representatives directly elected by the people in electorates with approximately equal populations, and a Senate, constituted by an equal number of representatives of each State, was already an accepted basis of Inglis Clark's draft Constitution. The main differences with the final Constitution were that Inglis Clark's Senate was to be elected by the State Parliaments rather than directly elected by the people, and there were to be no appeals to the Privy Council. Inglis Clark's draft also provided for the election of State Governors by State Parliaments, and for amendment of the Constitution by federal legislation confirmed by two-thirds of the State Parliaments. 7
Inglis Clark's draft gave a form to the concept of federation and had a strong influence on the following Convention.
Shortly afterwards, Charles Kingston of South Australia also drafted a Constitution which was similar to Inglis Clark's draft, but added further ideas. One such idea was the use of a Swiss-style referendum to amend the Constitution, as well as to confirm or reject ordinary federal legislation. Kingston also provided for the election of State Governors, but in contrast to Inglis Clark, he wanted Governors to be directly elected by the people, rather than by the Parliament. 8