Federation of Australia

A serious movement for Federation of the colonies arose in the late 1880s, a time when there was increasing nationalism amongst Australians, the great majority of whom were native-born. The idea of being "Australian" began to be celebrated in songs and poems. This was fostered by improvements in transport and communications, such as the establishment of a telegraph system between the colonies in 1872. The Australian colonies were also influenced by other federations that had emerged around the world, particularly the United States and Canada.

Sir Henry Parkes, then Colonial Secretary of New South Wales, first proposed a Federal Council body in 1867. After it was rejected by the British Secretary of State for the Colonies, the Duke of Buckingham, Parkes brought up the issue again in 1880, this time as the Premier of New South Wales. At the conference, representatives from Victoria, New South Wales and South Australia considered a number of issues including federation, communication, Chinese immigration, vine diseases and uniform tariff rates. The Federation had the potential to ensure that throughout the continent, trade and interstate commerce would be unaffected by protectionism and measurement and transport would be standardised.

The final (and successful) push for a Federal Council came at an Intercolonial Convention in Sydney in November and December 1883. The trigger was the British rejection of Queensland's unilateral annexation of New Guinea and the British Government wish to see a federalised Australasia. The convention was called to debate the strategies needed to counter the activities of the German and French in New Guinea and in New Hebrides. Sir Samuel Griffith, the Premier of Queensland, drafted a bill to constitute the Federal Council. The conference successfully petitioned the Imperial Parliament to enact the bill as the Federal Council of Australasia Act 1885.[3]

As a result, a Federal Council of Australasia was formed, to represent the affairs of the colonies in their relations with the South Pacific islands. New South Wales and New Zealand did not join. The self-governing colonies of Queensland, Tasmania and Victoria, as well as the Crown Colonies of Western Australia and Fiji, became involved. South Australia was briefly a member between 1888 and 1890. The Federal Council had powers to legislate directly upon certain matters, and did so to effect the mutual recognition of naturalisations by colonies, to regulate labour standards in the employment of Pacific Island labour in fisheries, and to enable a legal suit to be "served" outside the colony in which it was issued, "a power valuable in matters ranging from absconding debtors to divorce proceedings".[4] But the Council did not have a permanent secretariat, executive powers, or any revenue of its own. Furthermore, the absence of the powerful colony of New South Wales weakened its representative value.

Published in 1888 this cartoon depicts the anti-Chinese sentiment that was one of the driving forces behind the push for federation.

Nevertheless, it was the first major form of inter-colonial co-operation. It provided an opportunity for Federalists from around the country to meet and exchange ideas. The means by which the Council was established endorsed the continuing role that the Imperial Parliament would have in the development of Australia's constitutional structure. In terms of the Federal Council of Australia Act, the Australian drafters established a number of powers dealing with their "common interest" which would later be replicated in the Australian Constitution, especially section 51.

The individual colonies, Victoria excepted, were somewhat wary of Federation. Politicians, particularly those from the smaller colonies, disliked the very idea of delegating power to a national government; they feared that any such government would inevitably be dominated by the more populous New South Wales and Victoria. Queensland, for its part, worried that the advent of race-based national legislation would restrict the importing of kanaka labourers, thereby jeopardising its sugar cane industry.

These were not the only concerns of those resistant to federation. Smaller colonies also worried about the abolition of tariffs, which would deprive them of a large proportion of their revenue, and leave their commerce at the mercy of the larger states. New South Wales, traditionally free-trade in its outlook, wanted to be satisfied that the federation's tariff policy would not be protectionist. Victorian Premier James Service described fiscal union as "the lion in the way" of federation.

A further fundamental issue was how to distribute the excess customs duties from the central government to the states. For the larger colonies, there was the possibility (which never became an actuality) that they could be required to subsidise the struggling economies of Tasmania, South Australia and Western Australia.

Even without the concerns, there was debate about the form of government that a federation would take. Experience of other federations was less than inspiring. In particular, the United States had experienced the traumatic Civil War.

The nascent Australian labour movement was less than wholly committed in its support for federation. On the one hand, nationalist sentiment was strong within the labour movement and there was much support for the idea of White Australia. On the other hand, labour representatives feared that federation would distract attention from the need for social and industrial reform, and further entrench the power of the conservative forces. The federal conventions included no representatives of organised labour. In fact, the proposed federal constitution was criticised by labour representatives as being too conservative. These representatives wanted to see a federal government with more power to legislate on issues such as wages and prices. They also regarded the proposed senate as much too powerful, with the capacity to block attempts at social and political reform, much as the colonial upper houses were quite openly doing at that time.

Religious factors played a small but not trivial part in disputes over whether federation was desirable or even possible. As a general rule, pro-federation leaders were Protestants, while Catholics' enthusiasm for federation was much weaker, not least because Parkes had been militantly anti-Catholic for decades (and because the labour movement was disproportionately Catholic in its membership).[5] For all that, many Irish could feel an attractive affinity between the cause of Home Rule in Ireland – effectively federalizing the United Kingdom – and the federation of the Australian colonies.[6] Federationists such as Edmund Barton, with the full support of his righthand man Richard O'Connor, were careful to maintain good relations with Irish opinion.

The Australasian Federal Conference of 1890 met at the instigation of Parkes. Accounts of its origin commonly commence with Lord Carrington, the Governor of New South Wales, goading the ageing Parkes at a luncheon on 15 June 1889. Parkes reportedly boasted that he "could confederate these colonies in twelve months". Carrington retorted, "Then why don't you do it? It would be a glorious finish to your life."[7] Parkes the next day wrote to the Premier of Victoria, Duncan Gillies, offering to advance the cause of Federation. Gillies's response was predictably cool, given the reluctance of Parkes to bring New South Wales into the Federal Council. In October Parkes travelled north to Brisbane and met with Griffith and Sir Thomas McIlwraith. On the return journey, he stopped just south of the colonial border, and delivered the historic Tenterfield Oration on 24 October 1889, stating that the time had come for the colonies to consider Australian federation.

Through the latter part of 1889, the premiers and governors corresponded and agreed for an informal meeting to be called. The membership was: New South Wales, Parkes (Premier) and William McMillan (Colonial Treasurer); Victoria, Duncan Gillies (Premier) and Alfred Deakin (Chief Secretary); Queensland, Sir Samuel Griffith (Leader of the Opposition) and John Murtagh Macrossan (Colonial Secretary); South Australia, Dr. John Cockburn (Premier) and Thomas Playford (Leader of the Opposition); Tasmania, Andrew Inglis Clark (Attorney-General) and Stafford Bird (Treasurer); Western Australia, Sir James George Lee Steere (Speaker); New Zealand, Captain William Russell (Colonial Secretary) and Sir John Hall.

The Federal Oak in the gardens of the Victorian Parliament House in Melbourne. The tree was planted in 1890 by Sir Henry Parkes to commemorate the meeting of the Australian Federal Conference.

When the conference met at the Victorian Parliament in Melbourne on 6 February, the delegates were confronted with a scorching summer maximum temperature of 39.7 °C (103.5 °F) in the shade. The Conference debated whether or not the time was ripe to proceed with federation.

While some of the delegates agreed it was, the smaller states were not as enthusiastic. Thomas Playford from South Australia indicated the tariff question and lack of popular support as hurdles. Similarly, Sir James Lee Steere from Western Australia and the New Zealand delegates suggested there was little support for federation in their respective colonies.

Political cartoon from 1900 that shows the colonies of New Zealand and Fiji rejecting the offer to join the Federation, with Zealandia referencing Australia's origins as a penal colony.

A basic question at this early assembly was how to structure the federation within the Westminster tradition of government. The British North America Act, 1867, which had confederated the Canadian provinces, provided a model with respect to the relations between the federation and the Crown. There was less enthusiasm, however, for the centralism of the Canadian Constitution, especially from the smaller states. Following the conference of 1890, the Canadian federal model was no longer considered appropriate for the Australian situation.[8]

Although the Swiss Federal Constitution provided another example, it was inevitable that the delegates should look to the Constitution of the United States as the other major model of a federation within the English-speaking world. It gave just a few powers to the federal government and left the majority of matters within the legislative competence of the states. It also provided that the Senate should consist of an equal number of members from each State while the Lower House should reflect the national distribution of population. Andrew Inglis Clark, a long-time admirer of American federal institutions, introduced the US Constitution as an example of the protection of States' rights. He presented it as an alternative to the Canadian model, arguing that Canada was "an instance of amalgamation rather than Federation."[9]

Andrew Inglis Clark, circa 1907

Andrew Inglis Clark had given considerable thought towards a suitable constitution for Australia.[10] In May 1890, he travelled to London to conduct an appeal on behalf of the Government of Tasmania before the Privy Council. During this trip, he began writing a draft constitution, taking the main provisions of the British North America Act, 1867 and its supplements up through 1890, the US Constitution, the Federal Council of Australasia Act, and various Australian colonial constitutions. Clark returned from London by way of Boston, Massachusetts, where he held discussions about his draft with Oliver Wendell Holmes Jr., and Moncure Conway among others.[lower-alpha 1]

Clark's draft introduced the nomenclature and form which was subsequently adopted:

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

Upon his return to Hobart in early November 1890, with the technical aid of W. O. Wise, the Tasmanian Parliamentary Draftsman, Clark completed the final form of the Draft Constitution and had a number of copies printed.[11] In February 1891, Clark circulated copies of his draft to Parkes, Barton and probably Playford as well.[12] This draft was always intended to be a private working document, and was never published.[13]

The Parliament proposed at the Convention of 1891 was to adopt the nomenclature of the United States Congress; a House of Representatives and a Senate. The House of Representatives was to be elected by districts drawn up on the basis of their population, while in the Senate there was to be equal representation for each "province". This American model was mixed with the Westminster system by which the Prime Minister and other ministers would be appointed by the representative of the British Crown from among the members of the political party holding a majority in the lower House.

Griffith identified with great clarity at the Sydney Convention perhaps the greatest problem of all: how to structure the relationship between the lower and upper houses within the Federal Parliament. The main division of opinion centred on the contention of Alfred Deakin, that the lower house must be supreme, as opposed to the views of Barton, John Cockburn and others, that a strong Senate with co-ordinate powers was essential. Griffith himself recommended that the doctrine of responsible government should be left open, or substantially modified to accord with the Federal structure.

Over the Easter weekend in 1891, Griffith edited Clark's draft aboard the Queensland Government's steam yacht Lucinda. (Clark was not present, as he was ill with influenza in Sydney). Griffith's draft Constitution was submitted to colonial parliaments but it lapsed in New South Wales, after which the other colonies were unwilling to proceed.

The importance of the draft Constitution of 1891 was recognised by John La Nauze when he flatly declared that "The draft of 1891 is the Constitution of 1900, not its father or grandfather."[14] In the twenty-first century, however, a lively debate has sprung up as to whether the principal credit for this draft belongs to Queensland's Sir Samuel Griffith or Tasmania's Andrew Inglis Clark. The debate began with the publication of Peter Botsman's The Great Constitutional Swindle: A Citizen's Guide to the Australian Constitution[15] in 2000, and a biography of Andrew Inglis Clark by F.M. Neasey and L.J. Neasey published by the University of Tasmania Law Press in 2001.[16]

The traditional view attached almost sole responsibility for the 1891 draft to Griffith. Quick and Garran, for instance, state curtly that Griffith "had the chief hand in the actual drafting of the Bill".[17] Given that the authors of this highly respected work were themselves active members of the federal movement, it may be presumed that this view represents—if not the complete truth—then, at least, the consensus opinion amongst Australia's "founding fathers".

In his 1969 entry on "Clark, Andrew Inglis (1848–1907)" for the Australian Dictionary of Biography,[18] Henry Reynolds offers a more nuanced view:

Before the National Australasian Convention in Sydney in 1891 he [Clark] circulated his own draft constitution bill. This was practically a transcript of relevant provisions from the British North American Act, the United States Constitution and the Federal Council Act, arranged systematically, but it was to be of great use to the drafting committee at the convention. Parkes received it with reservations, suggesting that 'the structure should be evolved bit by bit'. George Higinbotham admitted the 'acknowledged defects & disadvantages' of responsible government, but criticized Clark's plan to separate the executive and the legislature. Clark's draft also differed from the adopted constitution in his proposal for 'a separate federal judiciary', with the new Supreme Court replacing the Privy Council as the highest court of appeal on all questions of law, which would be 'a wholesome innovation upon the American system'. He became a member of the Constitutional Committee and chairman of the Judiciary Committee. Although he took little part in the debates he assisted (Sir) Samuel Griffith, (Sir) Edmund Barton and Charles Cameron Kingston in revising Griffith's original draft of the adopted constitution on the Queensland government's steam yacht, Lucinda; though he was too ill to be present when the main work was done, his own draft had been the basis for most of Griffith's text.

Clark's supporters are quick to point out that 86 Sections (out of a total of 128) of the final Australian Constitution are recognisable in Clark's draft,[15] and that "only eight of Inglis Clark’s ninety-six clauses failed to find their way into the final Australian Constitution";[19] but these are potentially misleading statistics. As Professor John Williams has pointed out:[20]

It is easy to point to the document and dismiss it as a mere ‘cut and paste’ from known provisions. While there is some validity in such observations it does tend to overlook the fact that there are very few variations to be added once the basic structure is agreed. So for instance, there was always going to be parts dealing with the executive, the parliament and the judiciary in any Australian constitution. The fact that Inglis Clark modelled his on the American Constitution is no surprise once that basic decision was made. Issues of the respective legislative powers, the role of the states, the power of amendment and financial questions were the detail of the debate that the framers were about to address in 1891.

As to who was responsible for the actual detailed drafting, as distinct from the broad structure and framework of the 1891 draft, John Williams (for one) is in no doubt:[20]

In terms of style there can be little argument that Inglis Clark’s Constitution is not as crisp or clean as Kingston’s 1891 draft Constitution. This is not so much a reflection on Inglis Clark, but an acknowledgement of the talents of Charles Kingston and Sir Samuel Griffith as drafters. They were direct and economical with words. The same cannot always be said of Inglis Clark.

Results by colony of the 1899–1900 referendums

The bill as accepted by the colonies (except Western Australia, which voted after the act was passed by the British parliament) went to Britain for legislation by the British Parliament.