THEIR FIERY CROSS – REVISITING AUSTRALIAN FEDERATION

The COVID pandemic focussed Australians’ attention on the limits of their federation constitution. Border closures and state regulations have begged the question, “Did the Founding Fathers get it right?” Associate Professor at the Australian National University and author of Their Fiery Cross of Union – A Retelling of the Creation of the Australian Federation 1889-1914 William Coleman has reassessed the making of Australia’s federation unencumbered by any “affirmative” premise. He argues that Federation was the accidental upshot of a contest for personal political supremacy; that the cause’s leadership was mediocre; its democracy superficial, its motivations banal, its ideals more imperial than patriotic and its consequences injurious to Australia’s economic welfare, military security, industrial peace, and social harmony. On Tuesday 19 October 2021, in a Sydney Institute Zoom meeting, William Coleman was joined by author and NSW Solicitor General Michael Sexton SC to take up some of the issues arising from Australia’s federation.

THEIR FIERY CROSS – REVISITING AUSTRALIAN FEDERATION

MICHAEL SEXTON

There is no doubt that William’s book presents a challenge to the rather anodyne accounts of Federation that I recall from courses in Australian history during my school days.  One of the most striking features, as the book brings out, is that there was no wave of popular enthusiasm for the joining together of the colonies into a nation and this is illustrated by the fact that in none of the colonies did the number of voters in favour of Federation amount to anything like a majority of the adult population. It is interesting that those who orchestrated Federation wanted to get some kind of popular mandate for their proposals, given that this was not the case in, for example, Canada about which I will have something to say a bit later.

As the book points out, a relatively small group from the professional classes, many of them lawyers, dominated the conventions and produced the Australian Constitution.  At the Australasian Federal Convention in 1897 six of the ten delegates from NSW were lawyers and so were six of the Victorian delegates.  Four of those twelve lawyers would later be appointed to the newly-established High Court.

As someone who has appeared regularly before the High Court over the last twenty years, I can certainly testify to the truth of Alfred Deakin’s comment that federalism is legalism.  One thing that the founders, except perhaps for Deakin himself, did not foresee was that the High Court would inexorably expand the powers of the Commonwealth, including the financial role of the federal government, so that there would come to be a serious imbalance in Australia’s federal system.  It might equally be said, however, that they would never have foreseen a global pandemic that allowed the States to operate as independent entities as if in the days before Federation.  Nevertheless it might be expected that in the wake of the pandemic the dominant role of the Commonwealth in our federal system will resume and in all probability continue to increase over the coming years.  As I have already suggested, the High Court has been an extremely important factor at how the country’s federal system has developed and I am reminded of the remark of Henry Bourne Higgins, which is quoted in William’s book:

In America and Australia, the Parliament (and the people) are kept within the prison walls of the Constitution, and the High Court keeps the key.

One of the other things that the founders did not foresee was the role of the Senate.  To quote Deakin again, he said that “to introduce an American Senate into a British constitution is to destroy both.”  If the founders thought that the Senate would be a house to protect the rights of the States, they were soon disabused as it became a place dominated by political parties.  Up until the 1950s this did not matter so much because the government of the day could and usually did have a majority in the Senate as well as the House of Representatives.

But the failure of the 1967 referendum designed to break the nexus required by the Constitution between the numbers in the two houses – s 24 requires the Senate to be half the size of the House of Representatives – led to a significant increase in the number of Senators once the House of Representatives was enlarged.  This in turn lead to the election of independents and members of minor parties in the Senate, particularly from the less populated States where some of the Senators can be elected with a relatively small number of votes.  It is now almost impossible for the government of the day to obtain a majority in the Senate and the implementation of its legislative program requires endless negotiations with individuals or groups whose focus is often very narrowly-based and takes no account of broader national questions.

William’s book points out that one of the paradoxes of the economics of Federation was that the creation of a free trade regime within Australia was matched by highly protectionist policy for imported goods into the country.  This protectionist system in relation to imported goods essentially remained unchallenged until the Whitlam government of the early 1970s.  Even then, the system took decades to dismantle, reflecting the political reality that captains of industry have ready access to decision-makers in Canberra whereas consumers are a large but amorphous body without any ability to influence those decisions.

As the book notes there was no spirit of nationalism that drove the colonies towards Federation.  Apart from the Irish element in the community, the populations of the colonies saw themselves as essentially British and part of the Empire rather than as potential Australians.  The intensity of this feeling, at least in comparison to the US and to Canada, is a subject for speculation but may be explained by the dominance of the British Isles as the source of those coming to the Australian colonies up to that time.  This intensity was still evident in 1914 and reflected Australia’s contribution to the Great War, with even many Irish Australians enlisting in the armed forces.  In many ways it was the war rather than Federation that gave Australians there first sense of nationhood but, even then, it was largely a vicarious nationalism with their main identification being with Britain and the Empire.  To some extent this had occurred earlier and on a smaller scale in the form of the Boer War which largely coincided with Federation.

Australia’s Federation had little in common with the coming together of the thirteen original colonies to form the United States in 1777.  This is hardly surprising since American unity emerged from the need to provide a military response to Britain’s resistance to their declaration of independence.  The US Constitution was not drafted until 1787 and came into force in 1789.  Although there was some differences between the Australian colonies, they were relatively homogenous in comparison with their US counterparts, particularly given the great division in the US between the slave and non-slave States – a division that would lead after seventy years to a civil war that resulted in more than 600,000 dead.  Even now, the economic and social differences between various regions in the US are much more pronounced than any such differences within the Australian community.

There are some similarities between the Canadian Confederation of 1867 and Australia’s Federation. One difference, of course, is that a number of the Canadian provinces did not formally exist in 1867 and joined the initial group at later stages.  This was of course also true with the States of the US.  It is also true that a possibility – at least in the minds of some Canadians – of invasion by the US was an external threat encouraging unity in a way that was not true in the Australian colonies.  The American civil war, taking places it did between 1861 and 1865 at the very time Canadian Confederation was being considered, provided a potent reminder to those in the Canadian provinces that they had little in common with their neighbours across the border.  Another seemingly major difference was that there was no popular vote of any kind in the relevant Canadian provinces in contrast to the referendums, however, inadequate, prior to Federation.

But the similarity is that, in the same way that Federation was engineered by relatively small group of politicians and lawyers, the Canadian confederation was orchestrated by a handful of politicians who organised two major conferences and then travelled to London in 1866 to draft the British North America Act.  When these sixteen delegates had completed their drafting, the legislation was quickly approved by the House of Commons and the House of Lords with 1 July 1867 being set as the date for union – certainly a much more orderly process than that which led to Australia’s Federation!

In contrast to these Federations, New Zealand is a unitary State.  Until 1841 it was part of the colony of NSW.  It became self-governing in 1856 and a dominion within the British Empire in 1907.  New Zealand does not have a written constitution, although in recent years there has been a group established that proposes the adoption of such a model.  The real legal questions that currently occupy a great deal of time in New Zealand do not arise because of divisions between different regions of the country but from the Treaty of Waitangi which was signed by Maori Chiefs in 1840 but is still the subject of on-going debate about the entitlements of the Maori section of the population.