the history of the federal idea in australian

: <7 s

The History of the Federal Idea in Australian Constitutional Jurisprudence:

A Reappraisal

David Meale*

Introduction: the Federal Idea

... to unite in one indissoluble Federal Commonwealth ...

That Australia is a federation is clear from the words of the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp.), and from the clauses that follow: that, at least, is part of the conventional wisdom of Australian

constitutional jurisprudence. The meaning and significance attached to the federal principle in Australian constitutional law beyond this simple statement, however, remains systematically confused.

The history of federalism as a scheme of political association stretches back as far as ancient Greece, where the Archean League, constituted by a central body responsible for military and foreign policy and a number of city-states autonomous

An earlier draft of this paper was submitted to the School of Law, Macquarie University, as part of the requirements for an honours degree in Law. I would like to express my gratitude to those members of the staff of that School whose efforts have been directed towards securing the form of legal education which distinguishes Macquarie’s Law School from others in Australia and which encouraged me to choose it in preference to the alternatives. I would also like to thank Andrew Fraser in particular for his valuable suggestions regarding earlier drafts of the paper.

25

26 THE AUSTRALIAN JOURNAL OF LAW AND SOCIETY VOL 8

in all other respects, was the most renowned but by no means the only example of a federation.1 The modem argument in support of the federal principle though, was probably most strongly made by Proudhon, who described it thus:

Federation from the Latin foedus, genitivtfoedeus, which means pact, contract, treaty, agreement alliance, and so on, is an agreement by which one or more heads of family, one or more towns, one or more groups of towns or states, assume reciprocal and equal commitments to perform one or more specific tasks, the responsibility for which rests exclusively with the officers of the federation... [The] essential characteristic of the federal contract... [is that] the contracting parties ... in making the pact reserve for themselves more rights, more liberty, more authority, more property than they abandon.2

Proudhon’s theory was one that is designed “to preserve, above all,... the sense of locality, respect for autonomies, and the spirit of self-government”.3 For Proudhon, the “federal system [was] the contrary of hierarchy or administrative and governmental centralization which characterizes, to an equal extent, democratic empires, constitutional monarchies and unitary republics”.4 Thus, in Bakunin’s words, the federal spirit entailed a commitment to the idea that “[e]very organization must proceed from bottom up:”5 federalism involved the structuring of society in a way which was in stark contrast to the transcendent notion of power and authority that characterised the absolutist state; it represented, within this tradition, the possibility of constitutionally limiting the exercise of power by separating it from and subjecting it to the authority which inheres in the processes of compacting together to constitute political associations.

In Australia, however, federalism, as a concept which could inform the process of constitutional interpretation, has been described by the High Court as “an implication which is formed on a vague, individual conception of the spirit of the compact,” based on mere “hopes and expectations respecting vague external conditions”6 7 and incapable of consistent application. Certainly in the State Banking Case1 the Court was prepared to use federalism as a principle implicit in the Constitution that would prevent the Commonwealth from acting in a way “which discriminates against States, or... which places a particular disability or burden upon an operation or activity of a State.”8 But it was not made clear how that judicial faith in an implied prohibition against discrimination could be meaningfully sustained in the light of

1 S .R. Davis, The Federal Principle: A Journey through Time in Quest of Meaning 27-30 jU.^of Cahf. Press 1978); W.K.C. Guthrie, A History OF Greek Philosophy 51 (Cambridge

2 P.J. Proudhon, The Principle of Federation (trans. R. Vernon) 38-39 (U. of Toronto Press 1979) (my emphasis).

3 Vernon, Introduction to PROUDHON, supra note 2 at xxii.4 See Proudhon, supra note 2 at 41.5 See Resnick, Federalism and Socialism: A Reconsideration, 4 PRAXIS INTERNATIONAL 400

(1985).6 See Engineer's Case (1920) 28 C.L.R. 129 at 145.7 Melbourne Corporation v. Commonwealth (1947) 74 C.L.R. 31.8 See State Banking Case per Dixon J at 79.

1992 AUSTRALIAN CONSTITUTIONAL JURISPRUDENCE 27

the requirement in the Engineers’s Case for the application of “the ordinary principles of construction ... so as to discover in the actual terms of the instrument their express or necessarily implied meaning.”9 More recently, the difficulty in reconciling the federal principle with the logic of the “strict and complete legalism”10 11 that has been seen as the underlying paradigm of Australian constitutionalism since the Engineer’s decision, has been made at least slightly more explicit in a minority view of the High Court as it was constituted in the Barwick and Gibbs era - a view asserted in the face of an expansion of the Commonwealth’s use of the external affairs power. In Koowarta v. Bjelke-Petersen,u for example, Gibbs CJ said:

Of course it has been established, since the Engineer s case that it is an error to read s. 107 of the Constitution, which continues the powers of the Parliaments of the States, “as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in s.51, as that grant is reasonably construed, unless that reservation is explicitly stated” (see p 154). However, in determining the meaning and scope of a power conferred by s.51 it is necessary to have regard to the federal nature of the Constitution.

The growth of the Commonwealth’s sphere of influence which has to date been the overriding feature of Australian constitutional history12 has generally been seen as an inevitable part of political developments since federation within and without Australia. Those developments, according to the more generally accepted view, were beyond the foresight of the framers of the Constitution; they were developments which almost of necessity led to the decline of what had been federal limitations on Commonwealth power. In the words of one High Court judge:

[Australia] became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations. With these developments the position of the Commonwealth, the federal government, has waxed; and that ofthe States has waned...... This was greatly aided after [sic] the decision inAmalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (the Engineer s case) which diverted the flow of constitutional law into new channels.... [I]n 1920 the Constitution was read in a new light, a light reflected

9 Id. at 155.10 Dixon, Address in reply on his swearing in as Chief Justice of the High Court, 85 C.L.R. i at

xiv (1952).11 (1982) 56 A.L.J.R. 625 at 637.12 The argument here advanced is not that there is no limit on the Commonwealth’s expansion of

its powers, as the decision in the Bank Nationalisation Case (1948) 76 C.L.R. 1 most clearly demonstrated. Indeed, what will be suggested is that the absence of any coherent federal theory in fact makes the emergence of some such limitations possible despite an overwhelmingly centralist tendency in constitutional decision-making in Australia. The cases which have considered s.92 of the Constitution, of which the Bank Nationalisation Case is but one, provide the clearest illustration of the essential political contingency and conditionality of contemporary constitutional doctrine. A. Fraser, The Spirit OF THE Laws: REPUBLICANISM AND THE Unfinished Project of Modernity (U. of Toronto Press 1990) demonstrates clearly the antonymic nature of constitutional decision-making in the federally organised British Dominions, and uses the Australian s.92 cases as one clear example of an area of constitutional law which manifestly highlights that incoherence.


from events that had, over 20 years, led to a growing realization that Australians were now one people and Australia one country and that national laws might meet national needs ... As I see it the Engineer s case, looked at as an event in legal and constitutional history, was a consequence of developments that had occurred outside the law courts as well as a cause of further development there.13

Even amongst members of the judiciary itself there is a certain perception that the outcome of “federal disputes” in Australian constitutional law is, in a sense, enmeshed with political developments - an implicit recognition, to some extent at least, of the erosion of the formal separation between law on the one hand, and politics (in the broader sense of that word) on the other. The effect of such an erosion on the “federal balance” of constitutional law has been perhaps best summarised by Patrick Monahan, writing in relation to the constitutional jurisprudence of Canada - a modem federation within the Westminster tradition that has, in certain respects, closely related antecedents to those of Australia. According to Monahan’s thesis, legal doctrine generally and decisions regarding federal issues in particular have been systematically conquered by what, in the end analysis, is simply a form of political expediency. In line with this view, increasing centralism in Australia and, at least recently, the converse in Canada, could be accounted for by the respective differences in long term and overall political commitments. It is these commitments, rather than legal reasoning strictly so called, which ultimately determine the “federal balance”. That being so, legal doctrine itself must remain essentially indeterminate and politically contingent. As Monahan has suggested, as far as constitutional law itself is concerned:

One set of arguments may be rejected fairly consistently. But this rejection is not “required” by the materials. It is simply an exercise of political choice.This explains the apparent paradox, that law can have a definite content and yet still be thoroughly and unavoidably political.14

In what follows, however, the denial (by writers like Monahan, and others) of the possibility of any meaningful distinction in the adjudication of federal disputes between the realm of legal decision-making and that of the development of and commitment to a system of purely and simply political values (in the broader sense) will be re-evaluated. The sort of argument put forward by, for example, Windeyer J in the Payroll Tax Case cited above, will be reconsidered in a way which will raise questions of quite fundamental importance to the present and future direction of Australian constitutional jurisprudence. It will be suggested that the current orthodoxy regarding the decline of the role of the States in Australian government fails adequately to address the broader context of that decline. It is that context rather than the supposed inherent plasticity of the federal concept itself, which has made possible a constitutionalism founded essentially on broad political choice.

13 See Victoria v. Commonwealth (1971) 122 C.L.R. 353 per Windeyer J at 396.14 Monahan, At Doctrine’s Twilieht: the Structure of Canadian Federalism, 34 U. OF TORONTO L.

J. 47 (1984).


By, in a sense, beginning again from first principles, an argument will be made which suggests that the abject failure of the High Court of Australia to give coherent articulation to the notion of federalism is in fact the ultimate result of the impoverished discourse that has existed in Australia since before federation, and of the particular historical and philosophical origins of Australian legal consciousness. A thesis will be developed which argues that, rather than simply representing the gradual rise of a centralist view of the Australian federation as reflecting the political “reality” of Australia’s emergence as a modem nation-state, the path of Australian constitutional development has been shaped in a more fundamental sense by the fact that the federal idea, as a generative principle of authority within Australian constitutionalism, was effectively still-born. The possibility that the purported agreement of the people of the colonies “to unite in one indissoluble Federal Commonwealth” - an agreement formally recognised in the preamble to the Constitutional Act - could represent an authoritative basis for structuring and limiting the exercise of public power in Australia was, it will be argued, fundamentally precluded by the legal, philosophical and historical context in which it took place - the context of British Imperial sovereignty and everything it entailed.

To recognise the federal idea coherendy within Australian constitutional jurisprudence, it will be concluded, requires the development of a constitutional theory capable of transcending the concept of sovereignty that came with the Imperial Parliament’s exercise of its authority in enacting the new Australian Constitution, and of giving concrete articulation to the notion that a heterogeneous body politic might be capable of generating authoritative principles that could provide legal limitations upon the exercise of public power. In the age of a bureaucratic state of ever-increasing size, power and intrusiveness, the possibility of that recognition may seem remote indeed - and the belief in such a recognition might superficially be labelled quaint or unrealistic. But it is precisely because of that growth in both the size and power of government bureaucracies - and, indeed, because of the growth of a whole range of formally “private” bureaucracies exercising what can only be

i classified more and more as de facto “public power” - that the need to search for a viable federal theory becomes all the more imperative.

This paper sets out to challenge the belief long in vogue amongst the orthodox Left of Australian politics that federalism can only be seen as, at best, an anachronistic and inconvenient accident of history and, at worst, an entrenched refuge for the vested interests of the “rat-bag Right” against the ameliorating efforts of more

! or less reformist social policy-makers. It will argue that, because of an impoverished legal consciousness, the possibility of real and binding legal limitations on the exercise of concentrated power that the federal idea can offer has never been seriously recognised in Australian constitutional law. The realisation of that possibility represents the only chance of seriously addressing the alienation and repression increasingly experienced by the diverse range of individuals and groups that make up Australian society. The aim must be, then, to reconsider critically the history and antecedents of the federal idea in Australian constitutionalism, to address the shortcomings of Australian federalism, and seriously to approach the task of generating a new federal theory.


The Impetus for Federation

Federated Australia [was] a foregone conclusion. Garran

That federation was the inevitable future of the British colonies in Australia was part of the accepted orthodoxy of Australian politics, possibly as early as the 1850s, and certainly by the time of the Inter-Colonial Convention in 1883.

Indeed, the possibility of some form of union of the colonies was suggested by New South Wales Governor Fitzroy, as early as 1846.15 Less than a year later, the separation of the Port Phillip District from New South Wales led Lord Grey, Secretary of State for the Colonies, to suggest a general assembly to deal with matters of common Australian concern. And when a Privy Council Committee on Trade and Plantations recommended Victoria be established as a separate colony in 1849, it also recommended that one governor be appointed governor-general and “authorized to convene a body to be called the General Assembly of Australia.”16 Its membership was to include representatives from each colony in numbers proportionate to their respective populations, and it was this that led to the outcry and to the proposal’s rejection: in the South Australian legislature a resolution, endorsed by a public meeting in Adelaide on 21 December 1849, condemned it on the ground, amongst others, that it would lead to the “overwhelming preponderance of the larger colonies” and would be “greatly injurious to the lesser”.17 It was becoming clear, therefore, that although a general assembly was not generally seen as appropriate in 1850, the coming together of the Australian colonies was likely in the long run. What was required, though, was a scheme that would achieve that outcome while in some sense maintaining the existing structure of the colonies.

Thus, in January 1857, Gavan Duffy was appointed to lead a Select Committee of the Victorian legislature “to enquire into and report upon the necessity of a federal union of the Australasian colonies for legislative purposes, and the best means of achieving such an union if necessary.” In August of the same year Deas-Thomson obtained a Select Committee of the New South Wales legislature for a similar purpose. Gavan Duffy’s Committee issued a unanimous report in support of the proposal, and that report was endorsed by the Committee from New South Wales.18 In concluding in favour of the proposal, Gavan Duffy observed that “neighbouring

15 In 1846 the imposition of tariffs by Van Diemen’s Land upon tobacco from New South Wales led the New South Wales Legislative Council to ask the Imperial authorities to disallow it, and subsequently Governor Fitzroy, in a despatch to London, to request an inter-colonial union to avoid any repetition of such a conflict over trade policy - advice that was not heeded. See J. Quick & R.P. Garran, The Annotated Constitution of the Australian Commonwealth 84 (Legal Books 1901).

16 See Quick & Garran, supra note 15, at 84.17 Id. at 86.18 Id. at 95-6.


states become either enemies or confederates”19 and that the latter was clearly preferable to the former. From the time when proposals for some sort of intercolonial union first emerged the proponents were very much members of the colonial political elite.

The first attempts to generate a political movement in support of federation in the ensuing years, however, foundered. They did so not because of the opposition of the existing hierarchy of colonial authority, but because of the practical difficulties of inter-colonial jealousies, the admitted irrationalities of inter-colonial trade, and the personal clashes that occurred between the various colonial political elites concerned with their own futures.20 Victoria, for example, had historically favoured economic protectionism in support of its food and fledgling textile industries; New South Wales favoured free trade and was eager to expand the markets for its goods.

By the beginning of the 1880s, however, federation was becoming a more foreseeable event. Communication between the colonies had been improved and, as Manning Clark has suggested, “[wjhile the past divided Australia into six separate colonies whose boundaries were defined by historical accident rather than the facts of either geography or the production and exchange of goods, economic development, even though impeded by tariffs and other barriers, mshed ahead and brought the colonies closer and closer together.”21

Certain events transpired which ultimately enabled the politicians of the time to transcend their differences and actively to pursue what was in essence a common concern; the creation of a federated Australia. The factors involved were several, the failure in 1842 to establish free trade between New South Wales, New Zealand and Van Dieman’s Land22 and the ultimate recognition that the free trade against protectionist debate could only be resolved by a federal legislature23 being only one of them. Perhaps the most immediate factor operating to advance the “federal cause” was the perceived need for a stronger defence of the colonies; as Deakin commented, the “chief stimulus” was the “threatening aspect of affairs in the Pacific in the immediate neighbourhood of Australia.”24 There was, on the one hand, the French annexation of the New Hebrides and its use of New Caledonia as a penal colony; on the other, there was the German presence in New Guinea. Thus, as Egerton has argued, “[f]or years British Australasia seemed mistress in her own southern seas; and it is noteworthy that it was the threat of 1883 of the Germans in New Guinea which first set Australian public opinion moving in the direction of federation.”25 It

19 G. Greenwood, The Future of Australian Federation 29-30 (Melbourne U. P. 1946).20 B.R. Wise, The Making of the Australian Commonwealth 1889-1900: A Stage in the

Growthofthe Empire 17 (Longman, Green & Co. 1913).21 M. Clark, A Short History of Australia 2nd ed. 146 (Macmillan 1982).22 K.R. Cramp, The State and Federal Constitutions of Australia 2nd ed. 122 (Angus &

Robertson 1914).23 See Greenwood, supra note 19 at 24.24 A. Deakin, The Federal Story: The Inner History ofthe Federal Cause -1880-1900 11

(Melbourne U. P. 1963).25 H.E. Egerton, Federations and Unions Withinthe British Empire 41 (Clarendon 1924).


was becoming clear to many that “if Australian opinion was [sic] to carry weight in questions relating to the Pacific, it must be given unified expression.”26

These factors led first to the establishment of the Federal Australasian Council (which was constituted by an Act of the Imperial Parliament that became law on 14 August 1885). As Quick and Garran observed:

The Council was to be a legislature merely, with no executive powers, and no control over revenue or expenditure. And even its legislative powers were very scanty ... The Council would be a “ricketty body”; composed of a very few members, and unfit to be entrusted with the power of overriding the local Parliaments. It would only cause dissatisfaction and conflict [quoting New South Wales Premier Parkes]... [A]ll efforts to galvanize the Council into life were unavailing; and in January, 1899, it met at Melbourne for the last time.27

The Federal Council was inadequate for the purposes for which it was formed: to provide uniform legislation in respect of defence, international affairs in the Pacific, and quarantine. It not only lacked the power to deal with these effectively, but the competence to address a range of other factors in respect of which, it was becoming increasingly clear, the colonies were incapable of addressing individually themselves - in particular, economic expansion across their borders and, as a by-product, the emergence of a trade union movement also organised on an intercolonial basis.28

The federal movement began to gather momentum not as a result of the emergence of any radical challenge, but as a result of events which, in Garran’s words, “changed federation from an idea to a formula, from a dream to a policy.”29 In large part, the possibility of federation represented a confirmation rather than a rejection of the traditions and structures that had come to define political life in the colonies. As Garran wrote in 1897:

We have one origin, one history, one blood; we have kindred laws and institutions; and we have sole possession of a continent... The only possible alternatives are between federal and complete union. ... [Federation] involves a less violent change, less disturbance ofthe old order ... Federated Australia is a foregone conclusion.30

There was thus a burgeoning Australian nationalism emerging in the colonies in the closing decades of the nineteenth century, led by federalists such as the members of the Australian Natives Association who, according to Deakin, were “all deeply earnest in the National Cause.”31 Rejecting the concept of an Imperial federation,32

26 See Greenwood, supra note 19 at 27-8.27 See Quick & Garran, supra note 15 at 111, 113,115.28 R.W. Connell & T.H. Irving, Class Structure in Australian History: Documents,

Narrative and Argument 135 (Longman Cheshire 1980).29 R. R. Garran, The Coming Commonwealth: An Australian Handbook of Federal

Government 116 (Angus & Robertson 1897).30 /zf. at 111-112. (my emphasis)31 See Deakin, supra note 24 at 9.32 R. KOEBNER & H. DAN SCHMIDT, IMPERIALISM: THE STORY AND SIGNIFICANCE OF A POLITICAL


they embraced the idea of the federation of the Australian colonies within the Empire as embodying the possibility of a powerful union - a community of the British Crown’s Australian subjects. Through what amounted to the “imposition of a high culture on society,”33 in a way characteristic of nationalistic movements generally, a vision of a new Australian nation was at least to some extent articulated by, in particular, the commercial and professional elite that had established itself in the colonies, most notably in Victoria. In this way the federal movement gathered strength:

The unity of Victorian opinion is to be explained largely by the homogeneity of its ruling class - politicians, businessmen and the opinion-makers - who were nearly all still (with rare exceptions like Deakin) the young migrants of the 1850s. They were more urban middle-class in origin, intellectually more provincially English than the ruling class of any other colony; the society they created was more metropolitan-dominated, more industrially developed, more closely in touch with the currents of English opinion and hence more sensitive to the rise of the new imperialism and threats to imperial security.34 35

Yet the appropriation of the “cultural shreds and patches used by nationalism”33 and their shaping into some limited vision of an “Australian” identity were so successful in generating mass acceptance of (if not interest in) federation precisely because, in Australia, the arguments for federation and the constitution of an Australian Commonwealth were in fact expressions of a form of British nationalism, and were grounded firmly in the traditions of colonial political life. The lack of disruption to “the old order” which was so strongly advocated, and which was seen as the supreme advantage of a “federal” constitution, was perhaps the chief cause of the general lack of mass involvement in the referenda in which, as Parker has shown, “nearly 40% of the qualified electors expressed no formal opinion on the adoption of the Australian constitution.”36

The federal movement, inspired by a vision of Australian government yet so firmly committed to the preservation of existing colonial institutions, therefore embraced values that had earlier origins - in the period when the colonies themselves were being granted self-government. The arguments for federation that came to ascendancy in the 1880s and 90s were entirely in accord with the attitudes and beliefs of the members of the ruling colonial elites who had achieved their positions, certainly most recently as a result of a struggle by commercial interests against the pastoralists,37 but ultimately as a consequence of the debate of the 1840s and 50s surrounding the grant of colonial self-government itself. It is clear that if a full

Word, 1840-1960 177-190 (Cambridge U. P. 1964).33 E. Gellner, Nations and Nationalism 57 (Blackwell 1983).34 Searle, The Victorian Government's Campaign for Federation 1883-1889 in ESSAYS IN

Australian Federation 53 (A.W. Martin ed. Melbourne U. P. 1969).35 See GELLNER, supra note 33 at 56.36 Parker, Australian Federation: the Influence of Economic Interests and Political Pressures, 4

Historical Studies 1,5-6 (1949).37 See CONNELL & IRVING, supra note 28 at 114-118.


understanding of the movement for federation in Australia - and of the principles underlying Australian federalism itself - is to be had, it must be gleaned not merely from the immediate history of the convention debates and referenda, but from an analysis of the political and cultural conditions that linked federation with the emergence of the new forms of colonial government several decades earlier.

Colonial Politics and Australia’s Place in the Empire

... it seemed impossible that the colonies would not steadily free themselves from British control to achieve practical independence, yet it seemed unthinkable that they should sever themselves from

the real and psychological advantages of membership of the grandest empire in the world.

Martin

When the British penal colony of New South Wales was established in 1788, Governor Phillip was given powers, based on the purported exercise of the royal prerogative to commission him, which included the making

of orders for the good government of the colony. Quick and Garran observed:The Governor was endowed with almost absolute power. His rule was despotism, tempered by his own discretion and the knowledge that he was liable to be called to account by the Imperial authorities for any maladministration.38 39

The Governor’s position in law was always somewhat dubious. While Calvin’s Casei9 recognised the Crown’s prerogative to rule colonies as “non-English possessions free from any limitations imposed by English law”, by the end of the seventeenth century a distinction was emerging between colonies settled by conquest (to which the rule in Calvin’s Case might apply) and “plantation” colonies.40 That distinction was borne out by a judgment of the Pri vy Council in 1722, in which it was said that “if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so wherever they go, they carry their laws with them, and therefore such new found country is to be governed by the laws of England.”41 As Englishmen, colonists like their kinsmen at home were entitled to the hard-won rights and liberties of the Glorious Revolution - they were entitled to insist that the prerogative of the Crown was exercised in accordance with the principles that acknowledged the supremacy of the Imperial Crown-in-Parlia- ment.42

38 See Quick & Garran, supra note 15 at 36.39 (1608) 77 E.R. 377.40 East India Co. v. Sandys (1670) 10 St. Tr., col. 371.41 Case No 15, Anonymous (1722) 2 Peer Williams 75, B and C 247.42 Campbell v. Hall (1774) 98 E.R. 1045.


Within a perspective which denied the possibility of an indigenous legal order amongst the Aborigines, the Australian colonies were assumed to be within this category of “settled colonies”. Thus, while the government of a penal settlement may have escaped the doctrine of parliamentary supremacy initially, by the early 1820s the growth of the body of free settlers in the colony gave rise to demands for parliamentary representation. Those demands were not rejected by the Imperial authorities. The Colonial Secretary, Lord Grey, told the Parliament:

Considered as members of the same Empire those Colonies have many common interests, the regulation of which in some uniform manner and by some single authority [i.e. the Imperial Parliament] may be essential to the welfare of them all. Yet in some cases such interests may be more prompdy, effectively, and satisfactorily decided by some authority within Australia itself than by the more remote, and less accessive, and, in truth, the less competent authority of [the Imperial] Parliament.43

While Lord Grey’s desire to see a level of colonial self-government might be attributable in some part to his Whig allegiances, there were deeper reasons. Though once “the colonies were regarded rather as dependencies established for the convenience and advantage of the Home Country, than as sister States peopled by kinsmen entitled to full rights of citizenship and freedom of trade”, there was a recognition in the Colonial Office that “ [oppression and short-sightedness resulted in the loss of the United States, and, sixty years later in rebellion in Canada”. The vision of men like Lord Grey was one in which the “Imperial connection was maintained, but so as to give fullest freedom of government to the colonial powers.”44

More importantly, however, colonial desires for self-determination also came to be expressed entirely within the traditional language of eighteenth centuiyr English constitutionalism. No doubt in part because of their physical reliance on mother Britain, in part because the demand for representation was one that had indeed characterised the political struggles of seventeenth and eighteenth century England, and in part as a result of political struggles in the 1830s and 40s which saw a conservative pastoral elite re-asserting its ascendancy over a rising class of urban mercantile interests, the arguments in favour of self-government embodied an assertion, not of the colonists’ rights as New South Welshmen, Victorians, Tasmanians or Australians, but of their rights and privileges as Englishmen. As Castles has pointed out:

The laws and practices of imperial Britain laid the foundation for the Australian legal system. They provided for constitutional government centred on the British monarchy. ... But the laws of Empire were not limited to enforcing British control over the places subject to imperial dominion. At times, as in the case of Australia, they also enabled British settlers to carry with them the laws of England. The principles ... reflected in part the standards and attitudes of English law ... [and] were influenced by great political events such as the

43 See Egerton, supra note 25 at 41.44 See Cramp, supra noie 22 at 185-6.


Glorious Revolution of 1688. ... [T]hey became so embedded within the framework of government that even in the second half of the twentieth century they may still affect the conduct of governmental affairs.45 46

Accordingly, when the Imperial Parliament passed the New South Wales Constitution Act 185546 responsible government was introduced into the colonies in a way that “did little to break the English connection.”47 For the political actors of the time, the notion of responsible government could embody the very essence of the English connection between the Home Country and her Colonial Empire. As Governor Darling commented in 1827, from his point of view “[t]he evil of this place is the passion which exists that New South Wales be the counterpart of England.” Thus, he exclaimed, if “it is desired to make us British people, give us British institutions!”48 The imperial authorities were willing to accede to that request, albeit incrementally, but ultimately to the extent that the colonial legislatures were granted wide powers under their constitution Acts, and considerable practical independence from imperial laws under the Colonial Laws Validity Act 1865 (Imp.).49

While “[m]ost general historians treat... [the grant of colonial self-government] as a cameo of an emerging Australian identity”,50 the 1853 debate surrounding the Bill which would be sent to London to be enacted by the Imperial Parliament as New South Wales’ new Constitution, established, beyond a shadow of a doubt, that the colonists were loyal British subjects. Indeed, what the conservatives led by W.C. Wentworth were suggesting was the introduction of an hereditary upper house

45 A. Castles, An Australian Legal History 1 (Law Book 1982).46 18 & 19 Vic., c. 54 (1855). The first Legislative Councils, established in New South Wales and

Van Diemen’s Land by the Act 4 Geo. Iv, c.96 (1823), were wholly appointed by the Crown to advise the Governor. These were replaced, by virtue of the Act 5 <x6 Vic., c.76 (1842), by Councils that were partly elected: the New South Wales Legislative Council consisting of twenty-four members elected by owners of freehold property over a value of two thousand pounds, and twelve members appointed by the Governor. The Act 13 & 14 Vic., c.59 (1850) established a similar Council in tne newly separated colony of Victoria. None of these bodies, however, had the powers of a parliament in the Westminster sense: the Governor remained responsible to the Imperial authorities, and the legislation of the colonies was subject to disallowance by the Imperial authorities. It was not until after the enactment of the Act 18 & 19 Vic., c.54 (1855) that responsible government was instituted in the colony of New South Wales, and subsequently Tasmania ana Victoria. For a full account of the institution of colonial self-government, see Quick and Garran, supra note 15.

47 See CASTLES, supra note 45 at 19.48 G. Martin, Bunyip Aristocracy: The New South Wales Constitution Debate of 1853

and Hereditary Institutions in the British Colonies 3 (Croom Helm 1986).49 The Colonial Laws Validity Act 1865 (28 & 29 Vic., c.63) (Imp.) provided that “[n]o Colonial

Law shall be or be deemed to have been void or inoperative on the Ground of Repugnancy to the Law of England, unless the same shall be repugnant to the Provisions of some such Act of Parliament, Order or Regulation” (s.3) ‘‘extending to the Colony” (s.2), but not otherwise. In addition, s.5 provided that ‘‘[e]very Colonial Legislature shall have, and be deemed at all Times to have had, full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and every Representative Legislature shall, in respect of the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Powers and Procedures of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony”.

50 See Martin, supra note 48 at 3.


modelled on the English House of Lords, and an elective lower house based on a property franchise - an argument for a colonial version of the English “mixed and balanced” constitution which, more than being a response to “the problem [of] how to achieve the right balance between democratic representation and class rule in a parliamentary system”,51 actually lent legitimacy to a structure in which democracy was far less important than deference to the authority and benevolence of a “natural” elite.

As Martin has suggested, the colonial “bunyip aristocracy” that had arisen out of the expansive pastoral reaches of inland New South Wales sought, by appealing to a “[constitutional mythology [which] held that the British House of Lords was a hereditary body, whose members, as living links between past and future, were the disinterested custodians of all that was best in British institutions”,52 to establish themselves as the traditional ruling elite to whom deference could, in accordance with that tradition, be expected. Thus, “the squatters, who dominated the partly elected Legislative Council in the 1840s, sought to extend its legislative powers ... and to ensure that their representatives would occupy the positions of executive government”.53

This notion of deference to a traditional elite was an integral part of the political and social structure of English society - indeed, just as the struggles or seventeenth and eighteenth century Englishmen at home had “replaced late-feudal monarchy by a rule which was ... patrician as well as representative,” so the colonial “squatto- cracy”, sought to establish a hierarchy of representation based on property. What constitutional monarchy “preserved was the essence of rule from above ...: an elite social class took the place of the failed English absolute monarchy, a collective ‘Prince’ which now employed the symbolism of the crown for its own ends”.54

The proposal for an hereditary upper house, though not itself vigorously pursued, was nevertheless important, in two respects. Firstly, it established the notion that political stability depended upon a stable colonial social elite that was ultimately to become and remain until very recendy the Crown’s appointee membership of the conservative upper houses.55 Secondly, and more importandy, it was to lead to the entrenchment of the logic of English constitutionalism as a structure which defined the limits of legitimate political and constitutional debate in New South Wales in particular, and ultimately in the colonies generally.

For the conservatives of the 1850s, and even for the less militant “radicals” like Henry Parkes (a future New South Wales premier and strong advocate of federation in the late 1880s), English constitutionalism and the strength of the Empire provided the possibdity of an over-arching stability in the context of the massive social

51 See Connell & Irving, supra note 28 at 109.52 See Martin, supra note 48 at 6.53 See CONNELL & Irving, supra note 28.54 Naim, The Twilight ofthe British State, 101/102 New Left Rev. 3 (1977) at 14.55 See Connell & Irving, supra note 28 at 114.


dislocation that was consequent upon the influx of immigrant gold-miners, the rapid expansion of commerce, and the possible emergence of radical working class movements.56 Certainly the adoption of English institutions in the colonies may have been accompanied by a degree of pragmatism and a willingness to put faith in state intervention and an active executive government not then a characteristic of British political life.57 Yet, at the most fundamental level, it was with the English tradition that the successful colonial politicians of the time identified themselves. Despite the emergence of an identifiable urban bourgeoisie, classically associated with the rise of capitalism and the modem state, the colonies, like England, remained tied to an essentially pre-modem constitution - a form of society that Naim has described as transitional, as between absolutist monarchy on the one hand, and the modem separation of an impersonal state apparatus from the structure of civil society, on the other.58

It was this which made possible the conservative victory of 1853, a victory which saw put in place a system of government based on a very limited property franchise and an appointed upper house. Even in the decades that followed which saw the expansion of the franchise of the lower house,59 the emergence of an organised trade union movement,60 and occasional challenges to the colonial politico-legal order in the form of rebellions such as that at the Eureka Stockade in 1854,61 the constitutional foundations adopted by the colonists and their allegiance to the British Crown as the unifying symbol of an hierarchical society succeeded in constraining the potential emergence of a genuinely radical popular movement.

As Martin has pointed out, men like John Dunmore Lang, leader of a fledgling movement for “freedom and independence for the golden lands of Australia,”62 in

56 See Connell & Irving, id. at 57-61 and M. Clark, supra note 21, at 104-121; cf. Martin, supra note 48, at 63, who has suggested that “[i]t is hard to recapture the traumatic impact of the discovery of gold” which brought about an “avalanche of migrants [which] deluged the colonies”: in Victoria, “the population quadrupled in five years”. The diggers’ movement was perhaps the first example of working class organisation - organisation which brought a state response in the form or legislation such as the Gold Fields Management Act and a tightening of the Master and Servant Act; see MARTIN, supra note 48 at 64.

57 P. Finn, Law and Government in Colonial Australia 160-166 (Vintage 1987); cf G. Woodcock, Who Killed the British Empire? (Jonathan Cape 1974).

58 See Naim, supra note 54.59 This was achieved through reductions in the value of property required for eligibility to vote.

See Quick & Garran, supra note 15 at 40-47.60 Indeed, CONNELL & Irving, supra note 28 at 57 have suggested that labour movement

organisation was developing as early as the 1830s.61 Manning Clark has described the popularisation of the rebellion at the Eureka Stockade ”as part

of a tradition of those of the Australian people who viewed their history as a steady progress from the dark and bloody days of the birth-stain to their great and glorious future when the people would be liberated from capitalist and imperialist enslavement. See CLARK, supra note 21 at 115.

62 This was the title of a book by Lang published in 1852 in which he claimed his object ’’was to disarm Great Britain beforehand” by preparing the metropolitan mind for the inevitability of Australian separation; see Martin, supra note 48 at 71. The extent of Lang’s radicalism must be questioned insofar as he was himself an active participant for some time in the colonial legislature and his activities in support of colonial self-government for Victoria, for example, rested squarely on his faith in the possibility of a petition to the “most gracious sovereign”. See J.D. Lang, Reminiscences of my Life and Times 205 (Heinemann 1972).


fact “added greatly to [their] task by assaulting the British Constitution head on” and by doing so, they had “secured the conservative unity Wentworth sought.”63 On the other hand, for liberals, like Henry Parkes and Alfred Deakin, who were to come to dominate colonial politics later in the century and who were to be the strongest advocates of federation,64 the arguments in favour of colonial self-government were entirely consistent with British imperialism: as Clark has observed, the leading Federalist, Deakin, at the same time “proclaimed his faith in British institutions, the Protestant religion, and the British way of life as the greatest achievements of man.”65

The obvious affection felt by the residents of the British colonies towards the Imperial monarchy was clearly bound up with the powerful ability of the English tradition to link the present to the past in a way that, throughout the nineteenth century, continued to lend a kind of deeply-felt legitimacy to the institutions of colonial government. Just as in England itself, the British residents of the colonies found comfort in the belief that “the British Crown was the most powerful and pacifying instrument on earth.”66 It had a legitimacy, moreover, stretching back to the very genesis of English law, and “[t]hose who planned to stay in Australia were not prepared to risk anything but the tried and true.”67

Thus, by marginalising men like Lang as disloyal, as libel-mongers, and as supporters of revolution,68 the conservative leaders of the 1840s and ’50s secured the support of urban mercantile interests long enough to entrench a patrician tradition, resting on deference to a political elite, in the newly constituted colonial political order:

Conservatives had their vision of Australia’s future too, and were anxious to tie wealth, merit and education to the country... Two of [their] bitterest opponents,John Dunmore Lang and Robert Lowe, were making an uncomfortable impact on the British scene by projecting themselves as exponents of the democratic voice of New South Wales. What better way to cut the ground out from under them than by trumpeting, even for a brief moment, a conservative and hereditary scheme of government for the colony?69

Ultimately, as we shall see, it was this acceptance of English institutions, which made possible the conservative victory in 1853, that resulted in Australian constitu

63 See MARTIN, supra note 48 at 123.64 Deakin, in particular, was influential in the Australian Natives Association, a prime mover in

the Victorian federal movement, and author of a book entitled The Federal Story: The Inner History ofthe Federal Cause -1880-1900. See Deakin, supra note 24.

65 See Clark, supra note 21 at 159.66 See KoEBNER & DAN Schmidt, supra note 32 at 75.67 See MARTIN, supra note 48 at 138.68 Martin has commented, W.C. Wentworth dismissed Lang’s book “as ’abominable trash’ and

its author [as] an ’anarchist”’. Lang was convicted of libelling his opponents and served terms of imprisonment as a consequence. Id. at 72, 70.

69 Id. at 3.


tionalism adopting a course of development that rendered virtually impossible the coherent articulation of the federal principle within it.

Pre-federation Legal Consciousness: English Constitutionalism in the Australian Colonies

Given the overwhelming commitment of nineteenth century colonists to the notion of Empire, it is clearly necessary to embark on the process of analysing the ways in which those loyal subjects of the Crown could have come

to consider a federation of the British colonies in Australasia. It is necessary, that is, to identify the ways in which men so accustomed to living within the legal universe of English constitutionalism came to accept, in the Australian context, the possibility of adopting a political structure which lacked any long-term credentials as an element of the English tradition.70 Modem federalism seemed to be bound up with the revolutionary overthrow of British imperialism in the context of eighteenth century American independence. How, then, could it be possible, in the late nineteenth century, for colonial lawyers and politicians to reconcile the prospect of federation with their deep loyalty to English constitutionalism, the British monarch, and the British Empire?

This question can only be addressed, of course, by first considering the meaning of English constitutionalism to the actors in the processes that led to Australian federation. Pre-federation legal consciousness embodies the key, not only to the question of how nineteenth century colonists could conceive of federation within the Empire, but also, ultimately, to the more fundamental question to which the present discussion is addressed - the reasons for the inability of Australian constitutional jurisprudence to come to terms with federalism as a generative principle of authority capable in itself of giving coherent meaning and legitimacy to the institutions that came into existence in twentieth century Australia. That consideration will lead to the inevitable conclusion that “federalism” was possible in the context of the new Australian Commonwealth only through a process that denied the validity of its essential principles.

It was not a cause for comment among colonial lawyers of the closing decades of the nineteenth century that the constitutional text to which they referred, and which had been written by Professor W.E. Hearn of Melbourne University, was entitled The Government of England?1 That work, published in 1867, outlined, in terms praised by several prominent English writers who followed it,72 the essential

70 The confederation of the Canadian provinces had been created by the then relatively recent British North America Act 1867 (Imp.).

71 Hearn’s The Government of England was required reading for intending barristers in New South Wales under the Bar Admission Rules of 1877, See READINGS IN THE HISTORY AND Philosophy of Law 995 (A.W. Fraser ed. Macquarie University 1985).

72 See, for example, A. V. Dicey, Introduction to the Study ofthe Law ofthe Constitution, 9th ed., vi (Macmillan 1952).


features of the legal tradition that was common to Englishmen throughout the Queen’s dominions.

The essence of English constitutionalism was, as Hearn pointed out, sovereignty. The most basic principle of English law, and one no less compelling in the colonies, was dominion and while the Queen may no longer have ruled absolutely in a personal sense, in legal terms her sovereignty was absolute. Although untrammelled sovereignty rested with the Crown-in-Parliament, and the Crown-out-of-Parliament might usually be subject to the Rule of Law, the English monarchy continued to rule despotically, even if that despotism was enlightened by advice73 to the extent that politically it was conditioned by the representative nature of parliamentary institutions and the responsibility of the Executive to the Parliament. As Professor Hearn pointed out:

[The] state is an independent, or (as Lord Coke and Lord Hale with an unfortunate ambiguity describe it) absolute, Sovereign Body.... The constitution of this independent Sovereign Body is vested in one person. It is limited, because that power can only be lawfully exercised by the monarch in certain prescribed modes, and on certain prescribed conditions. The Queen and she alone is the depository of the national power. She and she alone is entitled to exercise that power. But in her exercise of it she always acts by the advice and with the consent of certain bodies specified by law.... [I]ts exercise is directed and controlled by a machinery which more or less adequately represents the existing sentiments of the community.74

The British monarchy in itself could no longer be classified along absolutist lines, since the struggles of the seventeenth century had entrenched the supremacy of Parliament. Yet, whatever the political reality, when the sovereign will received expression as that of the Crown-in-Parliament, its legal authority was indeed absolute: once the forms prescribed by law (the consent of the Commons and the Lords - or the Legislative Assembly and Council) were complied with, the legal expression of the royal will represented the single and the unchallengeable expression of public power and authority. Indeed, under certain circumstances the Crown- in-Parliament retained despotic powers to act to “preserve” the constitutional order - reserve powers exercisable largely on the Crown’s own terms, especially when the existence of exceptional circumstances could give rise to a situation “not codified in the existing legal order”75 in which “the juristic definition of sovereignty” must explicitly recognise that “[sovereign is [s]he who decides on the exception.”76

73 W.E. Hearn, The Government of England: Its Structure and its Development 18 (Longman, Green, Reader & Dyer 1867).

74 See HEARN, supra note 73 at 16.75 C. Schmitt, Political Theology 6 (MIT Press 1985).76 Id. at 5.


Thus when the Supreme Court of Victoria, for example, held in Ah Toy v. Musgrove77 that the sole source of public rights in every dependency of the British Crown possessing self-government was Imperial statute law (the will of the Crown- in-Parliament), it not only sought to limit the powers of governors acting in accordance with commissions issued by royal prerogative (the Crown-out-of-Parliament), but it simultaneously recognised the operation of the principle of monarchical sovereignty itself. According to that principle, power and authority were ultimately centred in a single, transcendent source which imposes order on a society legally incompetent to challenge it. As Hearn remarked, while there may have been “ominous voices so familiar to the ears of Frenchmen and of Americans, which declare, as the Athenians in their hour of passion and when hurrying to their downfall declared, that the laws are the laws not of the monarch but of the people, and that the people may do what they like with their own”, it was utterly beyond doubt that “no such doctrines are known to English law.”78

That is not to say that the practical, political limits on the exercise of the sovereign will were considered unimportant by lawyers of the time. Indeed, the very strength and legitimacy of those conventional understandings contributed to the strength and legitimacy of the Crown. Yet those conventions found their validity in “[n]o statute, no rule of Common Law, no resolution even of either House of Parliament.”79 80 A.V. Dicey, in a work that acknowledged his indebtedness to Hearn’s Government of England,*0 explained the nature and role of convention in terms of:

the essential distinction between “the law of the constitution”, which, consisting (as it does) of rules enforced or recognised by the courts, makes up a body of “laws” in the proper sense of that term, and the “conventions of the constitution”, which consist (as they do) of customs, practices, maxims, or precepts which are not enforced or recognised by the courts, [and which] make up a body not of laws, but of constitutional or political ethics.81

Constitutional convention could “secure that Parliament, or the Cabinet which is directly appointed by Parliament, shall in the long run give effect to the will of that power which in modem England is the tme political sovereign of the State - the majority of the electors or (to use popular though not quite accurate language) the nation.”82 And for British subjects in the self-governing Australian colonies, the conventions of responsible government could in the same way be said to secure that the expression of the sovereign will of the Crown-in-Parliament (the colonial legislatures) was a reflection of the political sovereignty of the electors of the colonies.

77 (1888) 14V.L.R.349.78 See HEARN, supra note 73 at 3.79 Id. at 8.80 See Dicey, supra note 72. Dicey proclaimed, “Professor Hearn’s Government of England has

taught me more than any other single work of the way in which the labours of lawyers established in early times the elementary principles which form the basis of the constitution”.

81 Id. at 417.82 Id. at 429.


But it was crucial that the separation between “legal sovereignty” and “political sovereignty” remained, at least formally, very clear. The unitary, universal and absolute authority of the will of the Crown-in-Parliament meant, fundamentally, that the problem of formally generating a principle of authority had been permanently “solved”: that the law was the law was self-evident. The stmggles for changing it, therefore, were confined to an arena which never questioned the authority of Parliament to make the law, but rather which simply sought to alter the political factors which led to the exercise of its will. Legal limitations on government per se, then, were apparently beyond the consciousness of the time: instead, the question raised by those seeking a role in government was never one of authority as such, but rather one of representation.

Representation, as the accepted goal of political struggle within the English tradition that grew up with the emergence of the “mixed and balanced” constitution in the seventeenth and eighteenth centuries, was clearly founded in the most fundamental sense on the premise of hierarchical rule. The Crown-in-Parliament, which might rhetorically claim credentials as a “popular” institution insofar as it was seen to be representative, was nevertheless a legal sovereign that had genetic legitimacy within the powerful mythology of the monarchical principle.83 Parliamentary government was in essence government by an elite and, in the sense that its legal authority need never be generated directly out of its constituent electors representation could be contrasted with democracy as the difference between an elite’s rule from above and the masses rule from below. Parliamentary government, whatever the rhetoric, was “less the foundation of ‘democracy’ (in the Enlightenment meaning) than a new variety of constitutional aristocracy.”84 85

Within the institutional structures of the English constitution, the state still lacked the impersonal character associated with government according to the paradigm of the modem nation-state, although to the conservatives of the nineteenth century, the more radical forms of liberalism might challenge the privileged position attached in a personal sense to the patrician elite. In 1872, for example, Bagehot argued that there were dangers in a more liberal franchise, and observed that “[t]he fancy of the mass of men is incredibly weak; it can see nothing without a visible symbol."*5 But the hierarchical nature of English constitutionalism was represented in more than the personal involvement of a patrician elite in affairs of state, and the gradual decline

83 The monarchical principle, as M. FOUCAULT, THE HISTORY OF SEXUALITY 88 (Vintage 1978) has pointed out, remains as one of the most significant elements of modem political life, linking it with the past in a way which gives to modem institutions a dimly sensed feeling of historical legitimacy:“At bottom, despite the differences in epochs and objectives, the representation of power has remained under the spell of monarchy. In political thought and analysis, we still have not cut off the head of the king. Hence the importance that the theory of power gives to the problem of right and violence, law and legality, freedom and will and especially the state and sovereignty (even if the latter is questioned insofar as it is personified in a collective being and no longer a sovereign individual)/’

84 See Naim, supra note 54 at 14.85 W. Bagehot, The English Constitution, 2nd ed., 90 (Garland Publishing 1978).


of that elite in political terms - especially in the Australian colonies87 - did little to undermine the importance of hierarchy itself in the Westminster model. In Hearn’s words:

In every form of government the secret of success must always depend upon the exercise of those powers which are entrusted to the prudence and the honour of its rulers.88

And, as Hearn pointed out, the introduction of English constitutionalism had a vital impact upon legal and political consciousness in the colonies. There, “loyalty which was before the badge of a class suspected by the rest of the community [became] the watchword of all; and with some extravagance in the sentiment there [arose] no small share of its nobleness and devotion.”89

To the extent that the “mixed and balanced” English constitution embodied “a social pyramid to act as basis for the operations of the patrician elite,”90 the notion of representation was the foundation “originally [of] the civil cum political authority of the agrarian elite.” But that authority “could be imparted to the bourgeoisie also, given the relatively gradual emergence of the latter class within the old patrician model.” And the nature of the political stmggles of early colonial life made this analysis strongly relevant to Australia, where there was, as there was in England, “a sufficient common basis of interest to make this possible”91 and necessary, given that “[p]atrician liberalism had defeated radical liberalism” - a “victory [which had] marked the whole evolution of the political system.”92 Whatever the balance between “Conservative” and “Liberal” or, indeed, “Labour”, in a political sense, the Parliament remained legally omnipotent, and while it could be said that the “electorate is in fact the sovereign of England” or indeed the colonies, “[i]t is a body which does not, and from its nature hardly can, itself legislate.”93 Deference to the parliamentary elite (whatever its colour) remained the established idiom of any body politic constituted in accordance with this English tradition, and the colonies in Australia were, as we have seen, no exception.

Given the manner in which this tradition confined questions of representation to the realm of politics rather than law, it is not surprising that there was some considerable disquiet felt by constitutional writers - Dicey in particular - to the concept of federalism. For them, the strength of English law was its ability to concentrate all legal authority in one “person” - its symbolic power lay in the manner in which monarchy personified the unity of English society, the very substance of

87 Woodcock has observed in Australia “an inclination towards political and social radicalism more advanced than existed in Britain until after the Second World War”, and that in “Australia, the trade unions became and remained more militant and more powerful than their British counterparts, at least until the First World War”. See Woodcock, supra note 57 at 121,122.

88 See Hearn, supra note 73 at 113.89 Id. at 127-8.90 See Naim, supra note 54 at 11.91 Id. at 16.92 Id. at 18.93 See Dicey, supra note 72 at 430.


which consisted in its characterisation as a community under the Crown. While in the nineteenth century rule by divine right may no longer have embodied Englishmen’s understanding of their relationship to the Queen, and while the political reality was one in which the expression of the sovereign will needed to be at least in some sense representative, their obedience to the law had its roots in their sense of belonging within the narrative of a common tradition in which monarchy was the ultimate foundation of their acceptance of rule from above.

In contrast to the tradition of Westminster constitutionalism, for Dicey “[f]ederal government mean[t] weak government” because, when the institutions of government are divided, “no one authority can wield the same amount of power as under a Unitarian constitution is possessed by the sovereign.”94 By instituting “a political contrivance intended to reconcile national unity and power with the maintenance of ‘state rights’,”95 a federal constitution was an artificial device which demanded “a superstitious reverence”96 before it could even attempt to solve the apparent paradox of “the harmonizing of national sovereignty with the perpetuation of state sovereignty.”97 The possibility of a limitation upon the exercise of sovereign power within a federal scheme was, for someone so firmly committed to the notion of untrammelled legal authority conditioned only by political conventions, clearly entirely alien to the English tradition.

However, as the following section of this paper will show, the ability of the founders of the Australian Constitution to transcend the distrust felt for federalism by English constitutionalists like Dicey in fact rested firmly on their capacity to conceive of federalism operating within an institutional structure which, first and foremost, owed allegiance to the English tradition in which the notion of untrammelled legal sovereignty provided the basis of constitutional authority. But, as will become clear, the cost of acceptance of that tradition would be to render impossible the coherent articulation of the federal idea in Australian constitutional jurisprudence. The theoretical basis of Australian federalism, that is, would be essentially impoverished.

Federalism and Sovereignty: the Adoption of Westminster Constitutionalism in the Australian Commonwealth

It is an adaption of the principles of British and colonial government to the federal system... The Constitution of the Commonwealth,

therefore, is not an isolated document. It has been built on traditional foundations. Its roots penetrate deep into the past...

94 Id. at 171,172.95 Id. at 143.96 Id. at 174.97 R.A. Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist 103 (U. of North

Carolina Press 1980).


It represents the aspirations of the Australian people in the direction of nationhood, so far as consistent with

and in harmony with the solidarity of the Empire. Quick and Garran

The practical problem facing those in Australian colonial societies in the second half of the nineteenth century was how to achieve the degree of unity necessary to put in place institutions capable of dealing with the military

threats emerging in the Pacific, of transcending the restrictions imposed on economic development by differential tariffs between the colonies, and of providing a response to the potential emergence of a radical, mass movement and to the growing organisation of inter-colonial trade unions.98 This needed to be done while at the same time preserving the various colonial parliamentary structures to which their members had become so attached, and to which the people had become accustomed to showing deference.99 This problem, however, was to be addressed in a manner which ultimately showed allegiance to the notion of sovereignty. In the English tradition, the framers of the Australian Constitution approached their task, not only in a context in which that document would take effect as an instrument of the Imperial Crown-in-Parliament, but in a way that recognised that the constitution of legal authority in the most fundamental sense was not in question. The founders of the Australian Commonwealth saw themselves not as asserting its legal independence from the Imperial Crown. To the extent that Australia was asserting its independence at all, it was in terms of its political aspirations to have its laws framed so as to be representative of the desires of the British Crown’s subjects in Australia.

As the following analysis will make clear, this perception of the task involved in drafting an Australian Constitution was crucial to the question of the articulation of federal principles in Australia. To the extent that federalism was an element of Australian political life it was essentially a principle seen to attach to the practical task of creating structures of representation: in a way which demonstrates the fundamental impoverishment of Australian legal theory, the federal idea was to be essentially relegated to the arena of politics. As a principle defining the nature of inter-governmental relations, or indeed providing for constitutional limits upon legal authority in a wider sense, the articulation of federalism would remain, in the Australian context, fundamentally incoherent.

98 See Clark, supra note 21 at Chapter 2.99 For an exposition of these factors and their operation on the development of the movement for

federation that culminated in the referenda of the late 1890s, see Parker supra note 36.


The Constitution Convention Debates

The records of the proceedings of the constitution conventions held in the decade before federation demonstrate clearly the broad consensus that existed amongst the delegates regarding the acceptance of the English tradition

of responsible government in the Australian context. As pointed out by one delegate, the very object of constitution-making was perceived as that of providing for independence within the Empire, and the most obvious method by which that could be achieved was to recognise the ultimate legal validity of the will of the Imperial sovereign but to make that sovereign will representative of the political goals of Australians:

[T]he work in which we are engaged in framing a federal constitution directly involves the assumption in these colonies of [the] complete measure of responsible government. The Crown in all matters relating to Australian interests must exercise its prerogative exclusively by the advice of Australian ministers.100

It is hardly surprising that in the process of constituting what was seen as a federal commonwealth of quasi-sovereign states under the Imperial Crown, “[questions of Empire, Monarchy and Federalism became, in the Australian context, intertwined.”101 The problem however, was that in attempting to provide a structure in which the exercise of the legal sovereignty of the Crown would be representative of the “political sovereign” (in Diceyan terms), how was the political sovereign to be defined?

A few of the participants in the debates were capable of recognising the impossibility of finding a coherent answer to this question. As Baker pointed out, federation was “altogether an alien method” of government to the English tradition,102 103 and the existence of two houses in the Commonwealth Parliament, attempting to reflect the ’political sovereignty’ of different elements within the federation, made this clear:

[H]ow absolutely inconsistent it is that the first principle of Federation should be that the responsible Ministry form of Executive should exist. ... [The delegates] cannot appreciate the fact that the Senate represents the people as firmly as the House of Representatives.... They can’t appreciate the fact that the House of Representatives represents the people grouped as a nation, and that the Senate represents the people grouped in States, but that they each represent the people.10*

100 Thynne, National Australasian Convention Debates (N.A.C.D.) in OFFICIAL RECORD OF THE Debates of the Australasian Federal Conventions 5 volumes 105 (Colonial Government Printers).

101 Zines, The Federal Balance and the Position of the States in THE CONVENTION DEBATES 1891-1898 : Commentaries, Indices and Guide 85 (G. Craven ed. Legal Books 1986).

102 See N.A.C.D., supra note 100 (Adel. 1897) at 31.103 Id. at 30 (my emphasis).


As Baker suggested, the desire to give the Senate co-ordinate powers with the House of Representatives was based on the delegates’ concern to protect the rights of the States. Indeed, it was this desire which led them to adopt a scheme on the United States model rather than the Canadian,104 despite the fact that the latter represented the most obvious choice as an example of a confederation under the Crown, and the former had arisen out of the context of an assertion of independence from the authority of the British monarch. And, as Baker observed, referring to Bryce’s The American Commonwealth,105 the co-ordinate power of the two Houses of Congress was based on the fact that “the two branches of the legislature in America are both servants of the same master, and that master is the sovereign people of America”.106 This clearly raised a problem if the existence of houses with co-ordinate power was to be reconciled with the notion of responsible government.

But, as Bryce had amply demonstrated, the notion of the sovereignty of the American people-at-large was not altogether incapable of adaptation to Australian purposes.107 Bryce, an English academic, embarked on an analysis of the government of the United States that would, as La Nauze has observed, become for the drafters of the Australian Constitution “the great textbook of them all.”108 Certainly, Bryce identified as one of the “main features of American government” the “sovereignty of the people, which expresses itself in the fact that the supreme law - the Constitution - is a direct utterance of their will.”109 But Bryce also made it clear that, in his view, the sovereignty of the people did not entail the radical democracy suggested by, for example, de Tocqueville. Of de Tocqueville’s writings on the United States, Bryce argued:

What he has given us is not so much a description of the country and people as a treatise, full of fine observation and elevated thinking, upon democracy, a treatise whose conclusions are illustrated from America, but are founded, not so much on an analysis of American phenomena, as on general and somewhat speculative views of democracy which the circumstances of France suggested.

104 La Nauze has commented:“The Melbourne debates showed that most of the delegates saw as the principal difference between the American and Canadian Consdtutions the dominant position assigned in the latter to the central government... A first and fair deduction from the Melbourne debates could have been that, in any constitution shortly to be framed, there would be no simple adoption of the most obvious model for the federal union of a contiguous group of British Colonies, the Constitution of Canada.” See J.A. La Nauze, The Making ofthe Australian Constitution 16-17 (Melbourne U. P. 1972).

105 J. Bryce, The American Commonwealth, 2nd ed„ Vol. 1 and 2 (Macmillan 1919).106 See N.C.A.D., supra note 100 (Meib. 1891) at 545.107 The remarkable change from an open distrust and hostility for American independence displayed

during the New South Wales constitution debates of the 1850s (see Martin, supra note 48) to its wholehearted acceptance as the model for Australian federation in the debates of the 1890s can only be attributed to the implicit recognition of the marked similarity between the notion of untrammelled sovereignty resting in the English Crown-in-Parliament and the indivisible and complete sovereignty of the American people-at-large - a point elaborated upon in the body of the argument which follows.

108 See La Nauze, supra note 104 at 273.109 See Bryce, supra note 105 Vol. 1 at 305-6.


Democratic government seems to me, with all deference to his high authority,... not so potent in the moral and social sphere as he deemed it110

So, while “[pjublic opinion ... determine[d] the direction and character of national policy,”111 the sovereignty of the American people-at-large was clearly little different in substance from the legal sovereignty of the Imperial Crown. The federalism of the United States could provide a useful example to the framers of the Australian Constitution precisely because, although their perception of it may have been inarticulate, they saw no need to draw an insurmountable distinction between the idea of the single, transcendent source of legal authority which was seen to rest with the American people-at-large, and the notion of the unitary sovereign will of the Crown descending from above.

To the extent that American federalism was seen not so much as a manifestation of popular sovereignty but, as Beer has suggested, primarily “as the solution to a problem of representation,”112 the scheme of the United States Constitution was directly relevant to the participants in the process of drafting the Australian Constitution. Federalism, conceived in these terms, was essentially a political rather than legal phenomenon.

The idea of utilising a bicameral legislature to articulate the federal nature of politics was one which in the United States and ultimately in the new Australian Commonwealth was essentially addressed to the issue of representation - an issue entirely familiar to Westminster constitutionalism, and one that did not appear to call into question the legal validity of the sovereign will.

The idea of a bicameral legislature as an element of representative government was not at all novel to the English tradition: it had, of course, been established in the Parliament at Westminster itself. And the possibility of a deadlock between the two houses was not alien either. In the Westminster tradition the solution was seen to be a political one and, similarly, the deadlock provision ultimately embodied in s.57 of the Australian Constitution accepted that the solution was to recognise the “political sovereignty” of the Australian people as a whole: authority was given to the Crown to dissolve both Houses, to reconstitute them by way of election, and to recognise the superior legitimacy of the political will of the people of the Commonwealth as a whole in a joint sitting in which the superior numbers of the Representatives would, almost as a matter of course, overwhelm the resistance of the Senate. Thus, in line with this understanding of the respective roles of the Houses, Sir Philip Fysh was able to say of responsible government:

I believe... [the government] will have a responsibility mainly to the House of Representatives.... The people will doubtless take good care that the Ministers represent the people; and we who believe in democratic forms of government

110 Id. at 4.111 Id. at 6.112 Beer, Federalism, Nationalism and Democracy in America, 72 American Political Science

Review 9,11 (1978).


are perfectly satisfied - when Ministers have a proper majority in the people’s House - that they are more in touch with the people with whom we want them to be in touch than they would be under any other form.113

The constitution of Australian government thus came to be seen much as the “mixed and balanced” constitution in the English tradition. The Senate would “guard ... against the tyrannic exercise of the power of temporary majorities” and “protect the people of the federation against hasty and ill-considered legislation.”114 But disagreement between the House and the Senate did not involve a question of the ultimate legal authority of the Crown-in-Parliament and, to the extent that there was to be a limitation upon the Commonwealth preventing it exercising its powers to upset the “federal balance”, that limitation was to be a political one.

However, this happy resolution of the problem of reconciling federation with the notion of sovereignty was superficial. The possibility that federalism could, as a constitutional theory, generate principles of authority that could provide legal protection for the autonomy of heterogeneous political associations within Australian society - legal limitations on government per se - was clearly not addressed. Yet, no matter how desirable it might be to confine federalism entirely to the realm of politics - to see it as a question of representation - the very existence of the States as juristic entities made that impossible. It was inherent in the nature of a federation, as Dicey had observed, that there was a written constitution, and the effect of that necessarily involved a blurring of the distinction between constitutional law and constitutional convention. The “federal balance” was in some sense formally recognised, then, in the provisions that allocated only some legislative powers to the Commonwealth, which created the Senate and prescribed its method of election,115 and the amendment provision.116 Those provisions, that is, embodied at one level a recognition of legal limitations upon the authority of the Commonwealth. Although the implications of this were largely beyond the drafters of the Constitution, the formal recognition of some notion of the “federal balance” within a Constitution itself an instrument of the sovereign will of the Imperial Crown-in-Parliament was to embody the essential incoherence of the articulation of the federal idea in Australian constitutionalism.

113 See N.A.C.D., supra note 100 (Adel. 1897) at 244.114 Id. at 106.115 Section 7 of the Constitution provides that the Senate shall be “composed of senators for each

State, directly chosen by the people of the State, voting, until the Parliament otherwise provides as one electorate.**

116 Section 128 of the Constitution provides that proposed amendments to the Constitution must be approved at a referendum in “a majority of the States [by] a majority of the electorate.’’


The High Court and Federalism - 1901-1920

... it is obviously not possible that either the legislature of the Nation, or the legislatures of the States, should be sovereign

in the absolute sense in which, for instance, the British Parliament is sovereign ...

throughout the whole Empire...Garran

number of fundamental questions regarding the possibilities of Australianfederation remained largely unaddressed by those who framed the consti

tutional document. While a great deal of time was spent in the Convention debates in working out the respective roles of the Senate and the House of Representatives, and in allocating specific powers to the Commonwealth Parliament, little attention had been addressed to the possibility that, even given the recognition given to the States by the representative structure of the Senate, the viability of the States would be threatened by the exercise of the new Commonwealth’s powers. The question of how the powers expressly granted to the Commonwealth would be interpreted by the High Court went unasked.

These questions related essentially to how sovereignty - State, Commonwealth and Imperial - could be articulated while, at the same time, recognising the federal nature of the Constitution. Herein was the central conundrum of the Australian Constitution: what in a strict Westminster model would have been conventional limitations upon the exercise of the legally absolute sovereignty of the Crown were, in the context of the written instrument of the Australian federation, given a level of formal legal recognition. To what extent were federal principles to be recognised as legal limitations upon the exercise of the sovereign powers of the respective Australian parliaments?

The inability of the delegates to the Conventions to solve that conundrum meant, of course, that the task was left to the judges of the High Court (with the “assistance” for some time of the Privy Council). The early history, in particular, of the High Court demonstrates the essential futility of the attempt to reconcile in any coherent way the notions of federalism and sovereignty.

The starting point of the first High Court under Sir Samuel Griffith (himself once a delegate to the Conventions) was in some sense to acknowledge the Constitution’s status within Australia as, in Garran’s words, “a fundamental law which has a higher sanction than ordinary acts of legislation,”117 and which could supposedly articulate the possibility of “owing allegiance to two sovereigns.”118 The Griffith Court developed a jurisprudence, then, which attempted to give recognition to the presence

117 See Garran, supra note 29 at 24.118 See Cramp, supra note 22 at 109.


of “sovereign powers existing within a sovereign power”, and to the fact that “neither can encroach on the sovereignty of the other.”119 Zines described the period thus:

The co-ordinate position of the States and the Commonwealth was seen as part of the very essence of federation, which was the description given by the preamble to the Commonwealth of Australia Constitution Act to the new policy it created. The object therefore of the Constitution... would be in danger if the government concerned could exercise its powers to the full without regard to federal principles and perhaps with the very purpose of destroying, or at least impairing, the activities of the other government.120

The very strength of the Australian commitment to the Westminster tradition of constitutionalism, and the clear impoverishment of the theory of federalism in the new Australian Commonwealth, were amply demonstrated by the fact that the only way in which the Griffith Court could see the protection of the “federal balance” as possible was by an explicit appeal to the notion of sovereignty:

In considering the respective powers of the Commonwealth and of the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign state, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution, either expressed or necessarily implied ... [since] a right of sovereignty subject to extrinsic control is a contradiction in terms.121

Thus the decisions in D’Emden v. Pedder122 123 which held that the receipt for a Commonwealth official’s salary was immune from the imposition of State stamp duty, and the Railway Servants’ Casem which established the reciprocal immunity of tbe States from Commonwealth laws that threatened to impinge on their spheres of authority, sought to establish the notion of sovereignty as the foundation of Australian federalism. The most immediate problem with that proposition - and one that ultimately points to the impossibility of its acceptance - was that it embodied an argument which could be utilised by both sides in any dispute, the proponents of States’ tights or those advocating increased centralisation in the Commonwealth, since both parliaments were, within this logic, “sovereign”, supposedly subject to no “extrinsic control”, yet nonetheless controlled by the federal scheme implicit in the Constitution. It provided no basis in itself, that is, for deciding the issue.

The essential incoherence of the argument became more and more obvious as a body of cases was built up and, indeed, it raised the further prospect that an aggrieved government would appeal to the Imperial Sovereign to disallow the legislation of the other.124 But somewhat ironically that possibility was to embody the “solution” to the problem that, as far as those early High Court cases were concerned, the

119 Id. at 106.120 L. Zines, The High Court and the Consutution 1 (Butterworths 1981).121 D’Emden v. Pedder (1904) 1 C.L.R. 91, per Griffith C.J. at 109 (my emphasis).122 (1904) 1 C.L.R. 91123 Federated Amalgamated Government Railway & Tramway Service Association v. N.S.W.

Railway Traffic Employees Assocation (1906) 4 C.LR. 488.Deakin v. Webb; Lyne v. Webb (1904) 1 C.L.R. 585, 610-611.124


“attempt to deduce any consistent rale from them [had] not only failed, but [had] disclosed an increasing entanglement with uncertainty” (the Engineers’ Case125). The overriding presence of Imperial sovereignty came to be seen as providing the only source of legal authority to which the High Court could look to find the principles governing the life of the Australian federation.

The judges that came to the High Court after the Griffith era may indeed have brought a different political outlook with them - the contrast between Griffith’s commitment to States’ rights and the centralist views of Isaacs was indeed an obvious one. But the reasons for the Engineers’ Court’s rejection of the style of constitutional jurisprudence that had characterised the first two decades of the Australian Constitution - and the ease with which that rejection could be accomplished - are far more fundamental. The judgment in the Engineers’ Case explicitly recognised, in fact, that the Australian Constitution was located firmly within the legal universe of Westminster constitutionalism and that, to the extent that the federal idea received a level of formal recognition in the constitutional document, it was not concerned with the ultimate forms of legal authority. The Constitution merely embodied a statutory schema of representative structures and delegated powers given force of law by the Imperial Parliament. This “solution” to the problem of incoherence was seen to be possible, in the first place, because it merely purported to give the notion of sovereignty which had underscored the earlier judgments of the Court its “proper” expression and, ultimately, because it was wholly consistent with the legal tradition which had found expression in the Australian colonies prior to federation, and in the debates surrounding the drafting of the Constitution itself.

The Engineers’ decision established that the “reality” was that the Crown was “ubiquitous and indivisible in the King’s dominions” (Engineers’ Case12&) and, whatever formal recognition was given to the fact of Australia’s existence as a federation, that existence was guaranteed only insofar as it received recognition by an expression of the untrammelled legal authority of the Imperial sovereign. Australian federalism was essentially seen as part of a conventional political reality that happened to have been recognised, to an extent, by the British Crown-in-Parliament.

Yet the resort to the imagery of the indivisible Crown embodied in the Engineers’ decision, while it has apparently satisfied the majority of constitutional lawyers in a conceptual sense,127 did not overcome the problem that, wherever ultimate legal sovereignty might formally be said to rest, the instrument which the High Court is required to apply so as to decide the validity of State and Commonwealth legislation must be interpreted. Moreover, while the recognition of the genetic authority of the Imperial Crown-in-Parliament may have led to the supposed application of neutral

125 (1920) 28 C.L.R. 129 per Knox C.J., Isaacs, Rich and Starke, J.J., at 141-2.126 Id. at 152.127 As put by the “leading intellectual light” of Australian legalism, Sir Owen Dixon, “the theory

which attributes the rule [of parliamentary supremacy] to what is inherent in a conception of sovereignty, is too transcendental for a working lawyer”. See Dixon, The Common Law as an Ultimate Constitutional Foundation, 31 A.L.J. 240, 242 (1952).


principles of construction in determining the respective powers of the States and the Commonwealth, their legislation too must be viewed within a paradigm which continues to acknowledge that the legal authority of those enactments rests formally upon their status as expressions of the sovereign will of the Crown-in-Parliament, be it State or Commonwealth. How, then, is the “federal balance” that must exist in any federation to be established within the paradigm of sovereignty?

The answer, quite clearly, is that that balance is elusive, that its coherent articulation is impossible. The appeal by the Engineers’ Court to the notion cf the unitary Crown, it becomes clear, was in essence an appeal to the unifying image of the monarchical principle in the face of the heterogeneity of the political reality with which it was faced. The very fact of the failure of the notion of untrammelled Legal sovereignty to provide meaningful criteria regarding the nature of inter-goveranen- tal relations, however, renders it necessary to base the authority for the “federal balance” elsewhere and, inevitably, that which in Diceyan terms would be allocated to the sphere of convention, must in some substantive sense be granted legal recognition.128

Thus the ultimate consequence of the adoption in Australia of a legal tracition committed to the notion of sovereignty must be to relegate as far as possible the definition of the “federal balance” to the sphere of modem systematic politics. In that sphere, dominated as it is by crudely instrumental assessments of the constantly swinging pendulum of majoritarianism, the legitimacy of governmental action comes to be seen only in terms of its ability to achieve what are perceived to be the over-arching shared purposes of the community. To the extent, that is, that the actions of government can claim some sort of legitimacy as a reflection in a sense of dominant values and broadly acknowledged economic goals, there persists no formal or substantive limitation on that action arising out of the concept of federalism. The irony of that position is, as we saw at the outset, that the very essence of the federal idea is to limit the extent to which those over-arching standards of mass politics can be imposed upon the diversity of autonomous views that would otherwise arise immanently out of the heterogeneity of political groupings and allitnces extant in society.

128 Indeed, in merely restating and adapting the earlier commitment to the notion of sover;ignty, the Engineers’ decision simply carried the indeterminacy of the earlier decisions to a higher level. Just as the sovereignty argument had been used during the Griffith era as support fir both States’ rights and pro-Commonwealth positions, the necessity of interpreting the expression of the sovereign will embodied in the Constitution inevitably involved the Court in the ver/ same juggling of “centripetal” and “centrifugal” arguments in order that ultimately decision! could reflect die politically appropriate (in a broader sense) position. In other words, the refuge sought by the Engineers' Court in the notion of indivisible sovereignty as the “solution” to the federal question condemned Australian constitutionalism to an essential doctrinal indeterminacy based on the antinomic nature of conflicting interpretations of the “federal balance”. While ore view may have been dominant, it has never been possible - as the minority view of the High Court in Koowarta v. Bjelke-Petersen (1982) 56 A.L.J.R. 625 and Commonwealth v. Tasmania (1983) 46 A.L.R. 625, and the majority view in the Bank Nationalisation case (1948) 76 C.L.R 1, for example, clearly demonstrate - completely to deny the intrinsic validity of its opposite For a fuller discussion of these issues, .see FRASER, supra note 12.


As the preceding discussion has shown, the constitutional tradition in which the Australian Constitution was placed was one in which legal restraints upon the exercise of the sovereign will were inconceivable. In adhering to that tradition, Australian constitutional jurisprudence continues formally to deny the role of the federal principle as a limitation in itself upon the legal authority of governments, arguing instead that, beyond the limited instances of statutory recognition of it in the Constitution, it must be asserted by electors during their occasional excursions to the ballot-box. Constitutional jurisprudence, however, remains tied to some sort of recognition of the federal idea inasmuch as it has been given that statutory recognition and, as a consequence, it remains condemned to the level of incoherence in its attempts to deal with a political reality that infringes upon what in the Westminster tradition would be the formally separate sphere of legal sovereignty. The theory of Australian federalism, by virtue of the on-going commitment to that tradition, thus remains impoverished, and federalism, as a generative principle of authority within Australian constitutionalism, remains systematically inarticulate.

Conclusion: Towards Coherent Theory of Australian Federalism

The decision of the High Court in the Engineers’ Case129 dealt a decisive and to date permanently debilitating blow to federalism as a principle of constitutionally limited government for the very reason that, in appealing to the

unitary authority of the Imperial Crown-in-Parliament, it highlighted the essential inconsistency between the notion of sovereignty on the one hand and the federal principle on the other. Australian federalism was essentially relegated to the arena of politics, and denied a coherent place in the High Court’s constitutional jurisprudence, precisely because the process of constituting the Australian Commonwealth had gone on entirely within the established universe of the Australian colonial acceptance of the authority of the Imperial monarch, the desirability of the English connection, and the precepts of Westminster constitutionalism.

Seen in this light, it is clear that the decision in the Engineers’ Case cannot be explained simply as a reflection of Australia’s development from a colonial past into the more unitary and unified nation characteristic of the politics of the twentieth century: rather, that decision arose in the context of the particular history of Australian legal consciousness - a history which in effectively denying the possibility of a coherent federal theory was itself instrumental in permitting the emergence of the legal and political structures of the Australian nation-state. Those structures were always based essentially on a unitary and centralist view of power, authority and legal culture.130 Seen in this light, what has been witnessed in Australian

129 (1920) 28 C.L.R. 129.130 As Gellner has pointed out, “[t]wo men are of the same nation if they share the same culture,

where culture in turn means a system of ideas and signs and associations and ways of behaving


federalism, is a realisation of the inherent weakness of the sort of impoverished federal theory which is more or less inevitable within a constitutional jurisprudence so firmly committed to the Westminster system.

The almost necessary defeat of coherent federal doctrine in the face of the relentless march of political development arises not from the inevitable destruction of any real separation between constitutional law and politics, but from the inevitable erosion of that distinction within a tradition which fundamentally denies the possibility of a system of coherent legal limitations upon governmental action. In particular, the notion of untrammelled legal sovereignty which receives articulation within the English constitutional tradition so whole-heartedly embraced by Australian constitutional drafters and jurists must be seen as being essentially in opposition to any notion of federalism operating as an authoritative principle capable of explaining the legitimate legal limitations upon the exercise of political power. The very idea of a single, transcendent source of authority and power that is so bound up within the concept of sovereignty is diametrically opposed to any view of constitutionalism that sees the protection of the autonomy of minorities as needing something more than blind faith in the existence of an agreement amongst the participants in modem mass politics that “[d]emocracy requires the spirit of toleration, and the dialectic of discussion to extend throughout the community.”'31

Seeing federalism as a mere scheme of political representation, as Australians have tended to see it, thus robs the federal idea of its essential elements - of its very ability to achieve, through the concept of an immanent process generating legal authority and meaning within diverse and multifarious bodies politic interacting within a structure based on the idea of legality, a normative universe which transcends and controls the exercise of political power. Such a theory would be capable of conceiving of federalism as arising out of shared understandings of the nature of political life that go beyond the alienated and incoherent majoritarian “federal balance” presently given expression within Australian constitutionalism. The rejection of the notion of sovereignty as the embodiment of unrestrained legal authority in a unitary and transcendent form that is necessary before federalism can begin to be taken seriously, however, is militated against by the very way in which the history of the constitution of Australian self-government developed entirely within the conceptual framework of the tradition of Westminster constitutionalism and its fundamental commitment to the theory of sovereignty.

Yet insofar as it rests its legitimacy in an appeal to the image of indivisible Imperial sovereignty, the Australian constitutional view of federalism, as most clearly embodied in the doctrinal position adopted by the High Court in the Engineers’ decision, is open to challenge. It is manifest that the genetic legitimacy of the Imperial Crown-in-Parliament - the legitimacy stretching back, in the lan- 131

and communicating.” See GELLNER, supra note 33 at 7.131 G. Maddox, Australian Democracy in Theory and Practice 197 (Longman Chesire 1985).


guage of the common law, to “time immemorial” - has an increasingly tenuous link with the realities of Australia’s political existence. This is so even though the Australian constitutional lawyer’s belief in the impossibility of intervention by the Imperial Parliament seems to rest, inevitably but nonetheless illogically (as Stephen J showed in his judgment in China Ocean Shipping Co. v. South Australia2) on the Imperial Parliament’s own denial of its authority to legislate with respect to Australia in legislation such as the Statute ofWestminster, 1932 and the Australian Act, 1986 - legislation which cannot sensibly be said to be formally legally binding upon that Parliament.

There are, of course, several alternatives if one is searching for a generative principle of authority capable of filling the gap left by the withering legitimacy of Imperial sovereignty. One is to see the Australian Commonwealth, as writers like Michael Detmold have seen it, as an organic “community under the law”.132 133 Clearly, though, this form of faith in “home-grown” nationalism rather than the “imported” Imperial variety of sovereignty does little to break with a tradition in which that very notion of sovereignty effectively short-circuits any coherent idea of federalism operating as a principle capable of giving meaning to the notion of constitutionally legitimate government.134 The adaptation, by the participants in the convention debates late last century, of the American model of the sovereignty of the people- at-large must surely demonstrate that proposals like those of Detmold’s cannot be seen as anything but more of what we already have, albeit in a more parochial style.

The other alternative is to recognise that the conventional reality of Australia’s existence as a federation - a reality from which even the more centralist writers like Detmold have been unable completely to escape - requires a constitutional theory committed to the federal spirit as the underlying principle of Australian political life. If the High Court has been prepared to give a level of formal recognition to Australia’s political existence as independent from the Imperial Parliament - a recognition which must be founded on a crystallisation of a conventional reality into constitutional law135 - it can hardly be logical to continue to argue that such a recognition of the federal principle cannot be accomplished from a legal point of view. The sort of “strict and complete

132 (1979) 145 C.L.R. 172.133 M.J. Detmold, The Australian Commonwealth: A Fundamental Analysis of its

Constitution 10 (Law Book 1985).134 As Friedrich has argued, “[a]bsolutist democracy is incompatible with federalism, because it

does not permit an effective division of power.” See C.J. FRIEDRICH, LIMITED GOVERNMENT : A Comparison 54 (Prentice Hall 1974).

135 As Barwick C.J. said in China Ocean Shipping Co. v. South Australia (1979) 145 C.L.R. 172 at 183: “The historical movement of Australia to the status of a fully independent nation has been both gradual and, to a degree, imperceptible. In that movement, the Statute ofWestminster ... and its adoption by the Parliament... played their very substantial part.”But clearly the denial by the Imperial Parliament of its authority to intervene in the government of Australia cannot be binding m any formal sense according to the principles of Westminster constitutionalism and the common faw. In this sense, then, the independence recognised by many of the judges of the High Court and Australian lawyers generally cannot be said to be formally or legally valid in traditional Diceyan terms as a matter of law, its validity, that is, must arise out of constitutional convention taking on the attributes of constitutional law.


legalism”136 that has resulted in aperpetuation of the Diceyan distinction between law and convention and an ongoing commitment to the precepts of legal positivism, the language of sovereignty, and the blinkered concept of constitutional literalism, must give way. It has been that form of legalism in which Australian constitutional jurists have taken refuge when purporting to address what has in consequence been the conundrum of Australian federalism.

The need to recognise a federal constitutional theory becomes all the more pressing in the later decades of the twentieth century precisely because, in the first place, the involvement of the bureaucratic state in more and more aspects of daily life renders the notion of political limitations upon that involvement more, and more obviously, unrealistic. Furthermore, the desire to cling to the notion of indivisible sovereignty as the fundamental principle of constitutional law must be seen as increasingly unrealistic precisely because the traditional subject-matter of public law - the organs of governmental power - no longer can be said to embody the sole source of public power in Australian society. In particular, the growth of giant corporations exercising de facto public power within structures still formally classified as “private”, makes a federal theory capable of explaining and structuring those heterogeneous centres of power in accordance with constitutional principles all the more necessary. Indeed, as Andrew Fraser has pointed out:

The theory of sovereignty, which serves as the foundation-stone of traditional constitutional theory, is no longer able to provide a reliable guide to legal realities in a world in which the formerly rigid separation between private law and public law is well on the way to breaking down altogether. If one hopes to be able to understand the structure of legitimate politico-legal authority in modem capitalist societies, it is absolutely essential to abandon an exclusive focus on the formal state apparatus.137

Federalism represents the possibility, therefore, of a theory of constitutionalism capable of explaining, structuring, and defining the legitimate limits upon the power of the already existing plurality of associations, interests and corporate institutions that surround and increasingly become enmeshed with the organs of governmental power. In articulating a coherent view regarding the relationship between government and governed per se, and in defining the legitimate bounds of interaction between various institutional manifestations of public power, federalism could provide the basis for a constitutional jurisprudence grounded far more coherently in the experience of modem Australian life than the present commitment to the notion of sovereignty (and, as a corollary, the presently impoverished federal discourse) associated with the acceptance of an out-dated Westminster constitutionalism.

The task is to seize upon those aspects of the English constitutional tradition that make a federal jurisprudence seem plausible, and to transcend those that have to date rendered it impossible. Through rejecting the increasingly archaic notion of

136 See Dixon, supra note 10.137 Fraser, Legal Theory and Legal Practice, 44/45 Arena 123, 143 (1976).


despotic rule bound up with the Westminster commitment to untrammelled legal sovereignty, and by taking up and refining the threads of an English tradition of legitimising legal authority by reference to its democratic political origins, it might be possible to build a narrative based upon the notion of constitutionally limited government resting on federal principles that transcends the incoherent representational meaning of federalism that has subsisted to date. To the extent that political authority is already seen in some sense as generated out of an immanent process, juristic recognition of the idea that a society committed to concepts of autonomy, freedom and democracy within a federal theory seems all the more plausible - particularly insofar as it is possible to highlight the increasingly depressing and stifling implications of the alienated processes of mass politics and absolutist democracy, in contrast to a substantively effective and coherently legitimate constitutional democracy. Such a democracy, contrary to many orthodox Left criticisms of federal arrangements, “far from clashing with federalism, now is seen to require it whenever a composite community exhibits more than one level of effective communal existence in terms of distinctive values, interests and beliefs,”138 or whenever it is recognised that substantive political freedom cannot exist without the possibility that distinctiveness and diversity is capable of receiving institutional recognition and articulation. Seen in this light, the possibilities of a federal theory of Australian constitutionalism take on new significance and embody new hope.

What is, at bottom, called into question here is the continued uncritical acceptance of a legal tradition which concentrates all authority, power and meaning in a single transcendent source, and which denies the very possibility of genuinely broad participation in what Robert Cover has called the “jurisgenerative process” of creating, immanently and inter-subjectively, the conditions of our shared existence. By directing attention to how the law is constituted, and by giving recognition to a notion of power as immanent and plural, the generation of a federal narrative within Australian constitutionalism gives rise to the possibility that the law could embody in a meaningful and legitimate way the very diversity of our shared experience. For those concerned about the problem of the increasing impact of unrestrained and arbitrarily exercised public power in all its forms upon our daily lives, it ought to become clear that the responsibility of finding a theory capable of providing real and binding limitations upon the exercise of that power cannot be abrogated much longer. As Cover has eloquently pointed out:

Legal meaning is a challenging enrichment of social life, a potential restrainton arbitrary power and violence. We ought to stop circumscribing the norms;we ought to invite new worlds.139

138 See FRIEDRICH, supra note 134 at 54.139 See Cover Nomos and Narrative, 97 Harv. Law Rev. 4, 68 (1983).