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Australian Law Reform Commission - Reform Journal |
Reform Issue 78 Autumn 2001
This article appeared on pages 11 - 15 & 73 of the original journal.
Federation’s first face: A brotherhood of infinite diversity
By Dr David Headon*
The baby boomer generation, and those that have followed, are largely unfamiliar with the issues, ideology and history of state rights in Australia. This is hardly surprising. For many decades now, stretching back to the first years after World War Two, discussion in the public sphere has overwhelmingly emphasised arguments for centralisation. The federal government has ruled the roost, while the states have merely pecked about, squabbling over the few farmyard remains.
Perusal of Reform Issue 68 ‘Building bridges – uniform laws within Australia’ reinforces this point. Discussing the urgent need for uniform laws, former ALRC President Alan Rose aggressively puts the case for ‘a laying up of the exhausted fabric of inherited colonial ad hocery’.1 His article recalls, for example, Kep Enderby’s strong stance in favour of uniformity when he was Minister for Secondary Industry in the early years of the Whitlam government. Former Prime Minister Bob Hawke is also quoted by Rose as advocating the need for a federal government to be properly armed with constitutional authority: ‘That authority does not exist ... the perpetuation of this anachronistic lunacy is hurting Australians every day of the week’.2
Later in the same issue of Reform, David Kinley cites one of the few book-length studies of Australian federalism to appear in recent decades: Gordon Greenwood’s The Future of Australian Federalism.3 In particular, Kinley recalls Greenwood’s provocative preface to the first edition of his book where he declares,
‘ ...the federal system has outlived its usefulness ... the conditions which made federation a necessary stage in the evolution of Australia’s nationhood have largely passed away ... It is time to recognise that the federation should be replaced by a unified state’.4
Greenwood, writing just after the conclusion of World War Two, promotes a most compelling case.
And yet, when one looks at the second edition of his seminal work, published a full 30 years later in 1976, it is the qualification to the substance of the first edition – supplied in a short, new preface – that catches the attention:
‘Looking back, I would feel that there was some degree of under-estimation of the extent to which federalism was entrenched ... there are strong latent forces which can be aroused in support of regional identity, local initiative, and state powers’.5
The issue of state rights, it seems, even when subjected to the vitriol of a succession of prime ministers, the logic of the lawyers and the serious consideration of devout centralist scholars throughout the continent, just won’t do the right thing and disappear. The resilience Greenwood observed in the mid-1970s is at least as visible today as then. Why is this? Perhaps former Premier of Queensland, Rob Borbidge, was right when he suggested after the recent Queensland election that Australians have never managed change very well.
The patterns of the past die hard. To better understand this benign conservatism applied to the federalist instinct, this paper will revisit the pre-federation decade of the 1890s – a period when, no doubt to the surprise of many readers today, we find the passion for and loyalty to colony/state so pervasive that it is, in the first federation conventions of the early 1890s, the dominant issue. Paradoxically, colonial differences represented the common ground of the participating delegates.
A sense of the motivations and machinations of this seminal period in Australian political history is essential if one is fully to understand the presence still, in this centenary of federation year, of Greenwood’s ‘strong latent forces’. If Greg Craven, Dean of Law at the University of Notre Dame (Western Australia), was correct when he said in his recent centenary of federation lecture that, after 100 years of federation it is clear that the Australian political and social genius is a federal genius, then on what was that genius first based? On social inclinations? Political? Or just plain regional parochialism?
Pre-eminence of state rights
When, at the Australasian Federation Conference in Melbourne (1890) and the National Australasian Convention in Sydney (1891), enthusiastic speakers extolled the virtues of a Commonwealth government and a country united in a common cause, almost without exception they did so in the same breath as advocating, or at the very least acknowledging, the pre-eminence of state rights – the need to defend at all costs the autonomy of individual colonies. If a Commonwealth was to be achieved, it could only occur through mechanisms respectful of the federating units.
Realistically, one could not have expected anything else. Most of the colonies had had self-government for nearly 50 years. While all had experienced growing pains, they had produced local politicians who had each played a role, either directly or indirectly, in the maintenance of essentially stable democratic systems.
As the fortunes of federation in Australia waned in the second half of the 19th century – for several decades, from the initial though short-lived enthusiasm of the late 1840s and early 1850s (curiously, from ideologically opposite characters such as the British Secretary of State, Earl Grey, and the fiery republican propagandist in New South Wales, the Rev John Dunmore Lang) until the next flush of interest in the late 1880s – colonial politicians got used to their limited independence. They got comfortable. Most liked the lifestyle. Others simply enjoyed being big fish in a manageably small colonial pond.
Such men had to be convinced that the federation being contemplated would provide the advantages of the nation state and few, if any, of the disadvantages. With the Melbourne Australasian Federation Conference, occurring a few months after Henry Parkes delivered his Tenterfield speech on 24 October 1889, the first substantial colonial stage had been created at which the people of the colonies could gauge the priorities of their elected representatives. Indeed, as historian JA La Nauze observed in his classic work The Making of the Australian Constitution, Melbourne ‘affords a useful compendium of the opinions of a group of Australian politicians, fairly representative of the experienced ministerial type, on the nature, prospects and difficulties of federation as they saw it at the beginning of 1890’.6
The case for federation
What do we find at the Melbourne conference? The tactical battles make for fascinating reading, even today. While Victorian ex-Premier James Service produced a taste of what was to come with a pre-conference banquet toast to a ‘United Australasia’ that famously labelled tariffs ‘the lion in the way’, nevertheless on the first full day of activity (Monday, 10 February) the big names of federation attempted to dominate through speeches carefully tailored to assume the high nationalist ground. Samuel Griffith eagerly anticipated the establishment of ‘a great Australian nation’; Alfred Deakin, ever the creative writer, spoke of ‘the sentiment of our nationality ... increasing in its intensity year by year’, of a people determined to reach the safe ‘haven of federation’; and Tasmanian Andrew Inglis Clarke also addressed the ‘sentimental aspect’, declaring that ‘the sentimental side will prove to be the practical, or the basis of the practical’.7 The coming federation constituted a movement of colonial hearts and minds.
But it was probably fitting that old Henry Parkes – as keen as ever to shape himself as the Father of Federation – most effectively articulated the affirmative case with a mixture of combative argument, idealism and a strong dose of memorable phrasing. Parkes took on James Service. There was no lion in the path, he affirmed, no ‘natural difficulty’ confronting the colonies. ‘The path,’ Parkes said, ‘is plain and bright with the genial sunshine of our own blue heavens, with no impediment in it whatever.’8 On the second last day of the conference, Parkes cunningly played the nationalist card with just the right bias for his audience:
‘Why should not the name of an Australian be equal to that of a Briton? Why should not the name of an Australian sailor be equal to that of a British sailor? Why should not the name of an Australian citizen be equal to that of the citizen of the proudest country under the sun?’9
It was masterly stuff, the rhetorical questions concluding with the subsequently oft-quoted challenge to his audience: ‘Make yourselves a united people, appear before the world as one, and the dream of going “home” would die away. We should create an Australian home.’ It was a challenge calculated to appeal to native-born and new chum alike.
Inter-colonial jousting
However, for all the platform skills of inspirational, Assembly-hardened pro-federationists like Parkes and Deakin, the issues of regional loyalty and pride would not be denied. Virtually all delegates agreed with the South Australian Doctor of Medicine, John Alexander Cockburn, that Canada was no model for Australia, specifically because the Canadian provinces had insufficient autonomy in that country’s Dominion structure. Inter-colonial jealousies, too, surfaced throughout proceedings. Inglis Clarke at one point chided the Victorian delegates for ‘having actually broken [trade] faith’10 with Tasmania, while a New South Wales delegate (the Treasurer, William McMillan) voiced what would be a refrain for Mother Colony representatives throughout the 1890s: if the colonies federate, it will be New South Wales which will make the greatest sacrifice. Delegates from the other colonies were not amused by this cheap grandstanding.
It was the debonair Cockburn who most accurately stated the prevailing attitude of the gathering when he said:
‘We want to see a union of strong colonies, each with its own local traditions, each with its own local affections, each with its own peculiarities. I think that such a union, such a brotherhood of infinite diversity would be much better than a homogeneous union of colonies without a proper amount of differentiation.’ 11
The ‘Australian concert’, for Cockburn and the vast majority of the Melbourne conference delegates, was harmony not unison. Federation would occur between the Australian colonies only if there was a recognition of difference, a preservation of the unique identities of each individual colony.
The patterns of debate established in Melbourne were maintained throughout the Convention meetings of the 1890s. La Nauze is right when he says that, after the Australasian Federation Conference, it was certain that the voices of the colonies would be heard loud and clear. As 1901 neared, the complexities of preserving each colony’s rights grew, but the message and motivations remained the same.
This inter-colonial jousting in Melbourne meant that the only realistic outcome was the passing of a general resolution looking to ‘early union under the Crown’ for the Australian colonies.12 However, enough substance emerged in Melbourne to encourage participants to create a future forum where the circumstances for discussion could continue. At Deakin’s instigation, a motion passed which confirmed the imminent convening of a ‘National Australasian Convention, empowered to consider and report upon an adequate scheme for a Federal Constitution’.13 Hence, on 2 March – 9 April 1891, delegates appointed by the Assembly and Council of each colony (and New Zealand) met to do just that.
The Sydney Convention
The narratives of the five-week Sydney Convention have been well-covered elsewhere.14 My concern, here, is simply to make the point that the Melbourne pattern was confirmed. For example, delegates had either seen beforehand, or were exposed during the Convention to, draft constitutions by Andrew Inglis Clarke and controversial South Australian Charles Cameron Kingston. Both drafts asserted the need to preserve ‘state rights’. The convention’s first resolution was unequivocal: ‘that the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federation Government’.15
Parkes, as ever the manipulator, discerned the way the colonial winds were blowing. So in his first major convention speech he sought to disarm criticism of a ‘federation at any cost’ line by stating outright that the convention had no intention to ‘cripple’ the powers of the colonies, nor ‘to invade their rights’ nor ‘to diminish their authority’ except where ‘absolutely necessary’.16 Griffith, speaking immediately after Parkes, reinforced the commitment. He needed to, because debate over the coming days and weeks constantly reflected the entrenched nature of colony/state preoccupations. Regardless of personal feeling, delegates felt they were representing a particular constituency. They were on show for their home colony and realised it. Philip Oakley Fysh, a Tasmanian delegate, stated that he was in Sydney to protect ‘the sovereign rights of the states’ because this was the issue more in ‘people’s minds’ than any other.17 Edmund Barton, destined to play the leading federation role in the years to follow, put the Convention on notice that if the ‘powers, privileges, and territorial rights’ of the colonies were not conserved, federation was ‘well nigh impossible’.18 Deakin anticipated the difficulties ahead: the federal Constitution needed to balance ‘conflicting localisms’.19
As the parameters of the debate at the Sydney convention expanded, delegates embraced a range of historical, social and psychological factors confronting them, conscious that such a survey was necessary if a compromise federal Constitution were to be obtained. Kingston, drawing attention to the length of time that colonies had experienced the ‘blessing’ of self-government, demanded that the draft be couched in language that all could understand. He wanted a Constitution replete with ‘precise language’ that meticulously detailed the powers to be surrendered to the Commonwealth. Western Australia’s premier John Forrest confined himself to matters more intangible, but no less significant. How to combat the colonies’ loss of prestige post-federation? Each colony, he said, had its own governors, legislators and government known to the world. If these are to be subsumed to the nation, then at what cost to colonial status? Forrest mused over the social consequences, for all delegates to hear and absorb.
Conclusion
If the 1891 convention in Sydney reinforced the Melbourne conference pattern, then the conventions meetings in Adelaide, Sydney and Melbourne of 1897-98 ensconced it. In his post-war federalism text, Greenwood acknowledged this: ‘the state rights question in its various forms was by far the most important problem with which the conventions had to deal’.20 The difference between the conventions of the early 1890s and those of 1897-98 was that, at the former, delegates had the luxury – the comfort zone – of federation appearing to be a fair way off; closer to 1901, it had become a distinct and imminent possibility. So, theoretical discussion, grandstanding and at times playful one-upmanship were replaced by intense debate about key issues: the powers of the Senate and House of Representatives, Commonwealth taxation power, deadlock clauses and right of appeal to the Privy Council.
In this atmosphere of political manoeuvre and counter-manoeuvre, no one was more adept than New South Wales premier George Reid. Recognising the imperative of a nation/state compromise in the late 1890s, Reid could still look to the forces likely to be at work in a more distant future:
‘At present ... we are sharply divided, and it is astonishing to what an extent differences of feeling have grown up in the various colonies; but, given a federation, how rapidly will these provincial differences and this bitterness disappear! Once the nation breathes as a nation, how soon will the spirit of the people change ...’ 21
Reid was right and he was wrong. Right, in that Australia now undoubtedly breathes as a nation. But wrong in that state loyalties continue to survive and, on occasion, to thrive. When Steve Waugh scores big hundreds for Australia, Queenslanders love it. Queenslander Mathew Hayden’s feats with the bat on the recent tour of India drew the same response from devotees of the game in New South Wales. But both states love to beat the other – in cricket, footy (any footy) or hay bale throwing. It is likely always to be thus. As the conventions of the 1890s demonstrate, such a delicate though vigorous balance of loyalties has a history longer than federation.
*Dr David Headon is the Director of the Centre for Australian Cultural Studies (Canberra) and Senior Lecturer in the School of Language, Literature and Communication, University College, Australian Defence Force Academy. His research interests include Australian literature, Aboriginal literature, Australian cultural studies, sport literature and republicanism.
Endnotes
1. A Rose ‘One Nation, One Law’ 68 Reform, 6.
2. Ibid.
3. G Greenwood The Future of Australian Federalism University of Queensland Press St Lucia 1976 (Second Edition).
4. Ibid, xii.
5. Ibid, ix-x.
6. J A La Nauze The Making of the Australian Constitution Melbourne University Press Melbourne 1972, 15.
7. Official Record of the Proceedings and Debates of the Australasian Federation Conference, 1890 Robert S Brain (Government Printer) Melbourne 1890, 58, 77–8, 111.
8. Ibid, 41.
9. Ibid, 225.
10. Ibid, 105.
11. Ibid, 133-134.
12. Ibid, 215.
13. Ibid, 261.
14. See for example J A La Nauze The Making of the Australian Constitution Melbourne University Press Melbourne 1972; H Irving To Constitute a Nation – a Cultural History of Australia’s Constitution Cambridge University Press Melbourne 1997.
15. Official Report of the National Australasian Convention Debates (Sydney, 2 March – 9 April 1891), George Stephen Chapman (Acting Government Printer), Sydney 1891, 23.
16. Ibid, 24.
17. Ibid, 43.
18. Ibid, 90.
19. Ibid, 70.
20. G Greenwood The Future of Australian Federalism University of Queensland Press St Lucia 1976 (Second Edition), 49.
21. Official Record of the Debates of the Australasian Federal Convention (Sydney, 2nd – 24th September, 1897), William Applegate Gullick (Government Printer) Sydney 1897, 652–653.
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