Irving, Helen --- "To constitute a nation" [1999] ALRCRefJl 2; (1999) 74 Australian Law Reform Commission Reform Journal 5

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Reform Issue 74 Autumn 1999

This article appeared on pages 5 – 9 of the original journal.

To constitute a nation

By Helen Irving*

All stories can be told in different ways. This is no less true for history than it is for fiction. The making of the Australian Commonwealth through the Federation of the Australian colonies is a story rich with alternative versions and different perspectives.

It could be told with a focus solely on the formal processes of writing the Constitution, or concentrate on the popular involvement in Federation. It could stress economic arrangements, or imperial relations, or ask which particular interests were served by Federation. Each of the States has its own story too, as well as sharing in a common national history.

There are cultural, social, economic, technological and political tales to tell. All of these alternatives have their own important history. But none operated in isolation; there was not a single cause of Federation. The processes worked together at a particular time to create a unique matrix, a distinctive political culture at the end of the 19th century out of which the Commonwealth was imagined as a reality and then shaped.

The idea of joining the unwieldy Australian colonies together had been in the minds of officials for many decades before 1901 when Federation was achieved, even before the division of the colonies into the familiar areas of land that have since remained almost unchanged (with only the Northern Territory separating from South Australia in 1911) and which shaped the States of the Commonwealth after 1901. In the decade before the separation of Victoria (1851) and Queensland (1859) from New South Wales, which completed the colonial mapping of the 19th century, the federal idea was already “in the air”.¹

First formal initiatives

Earl Grey, Britain’s Colonial Secretary, took the first formal initiative in this direction, sketching among other things, in 1847, the idea of a General Assembly to act as a central authority within Australia itself. In doing so, he made a list of what he considered to be the common concerns and interests of all the colonies over which the assembly might have jurisdiction: customs duties, postal services, roads and railways. This might seem an unobjectionable, even modest undertaking, but the colonists themselves reacted with outrage at Grey’s lack of consultation in devising his plan. Only a year later, however, William Wentworth, while still protesting, moved a motion in the NSW parliament in which he commended the idea of a General Assembly. But this too led to dispute, this time over the dominance of NSW in any such scheme, and both Grey’s and Wentworth’s proposals came to nothing.

Over the following decades, federal schemes appeared with regularity. Those coming from the British authorities were particularly concerned with solving the problem caused by the regime of varying import tariffs in the colonies. Home-grown schemes (such as the Federal Assembly proposed by Edward Deas Thomson in NSW in 1856) tended to embrace a broader range of federal concerns, including land management, postal services, lighthouses, and intercolonial railways and telegraphs. Select committees were formed in several colonies on the question and conferences proposed.

At an Intercolonial Conference, in 1867, discussion indeed got so far as to resolve that there should be a Federal Council, with powers over ocean mail subsidies. Henry Parkes, at that stage Colonial Secretary in the NSW government, characteristically saw the matter in visionary terms, and spoke prophetically of “a new constellation in the heavens, and the footprints of six young giants [the colonies] in the morning dew”. But the young giants still preferred their own patches to the common plot of “morning dew”.

While, as one federal scheme succeeded another, almost everyone agreed in principle that some sort of union was a good idea (and most accepted that tariffs, postal and telegraphic services, transport and immigration, if nothing else, were matters of common concern), each successive proposal failed. British schemes invariably came up against Australian protests over failure to consult; proposals from NSW (which produced the majority) irritated the other colonies because NSW always seemed to allocate itself the pre-eminent place in its scheme. Victorian schemes were rejected by NSW because these did not sufficiently recognise that colony’s pre-eminence. And so it went on.

At yet another conference on the tariff question, in 1881, Henry Parkes, by then NSW Premier, repeated his trademark theme that “the time is now come”. A federal authority, he argued, would be the preparation for a full Federation; a Federal Council, with limited powers to legislate on matters of common concern, would do the job. For many reasons, the 1880s would prove the turning point at which the ‘federal idea’ (found in all the schemes of the previous 40 years) would be transformed into the Federation movement.

Two years later, with Henry Parkes out of office and out of the country, a further Intercolonial Conference actually committed itself to creating such a body: it would be called the Federal Council of Australasia. Its members were to include New Zealand and Fiji, as well as the six Australian colonies. The Victorian and NSW representatives at the conference fought with each other and accused each other of wanting to dominate but, astonishingly, this time the proposal proceeded.

The Federal Council of Australasia Act was passed by the Imperial (that is, the British) parliament in August 1885, and thereafter a body existed which, in theory, would permit all colonies to confer every two years and to “legislate” on all those “matters of common Australasian interest, in respect to which united action is desirable, as can be dealt with without unduly interfering with the management of the internal affairs of the several colonies by their respective legislatures”.²

Four years later, Premier again, Henry Parkes failed to support the Federal Council, but found once more that the time had come for Federation, when a British War Office examination of the Australian colonies’ defence capability in 1889 concluded with a highly critical report. Parkes met with the NSW Governor, Lord Carrington, and immediately took up his challenge to “federate the colonies”. Returning from a Queensland meeting, Parkes spoke to a gathering in one of his former electorates, just across the NSW border. There, in what has become known as the ‘Tenterfield Oration’, Parkes pressed the urgency of the defence question and the desirability of holding a convention to devise a federal Constitution. Then he wrote to the other Premiers and proposed such a meeting.

The meeting took place in Melbourne in 1890 and it was followed by a full National Australasian Convention in Sydney the following year. There, the first complete draft Bill for an Australian Constitution was written and adopted, and the convention concluded with a commitment on the part of its representatives to put the Bill before their respective parliaments without delay.

Only Victoria, however, went any real distance towards following the plan. As had happened many times before, with changes of government and in addition now with considerable change of fortune brought about by the severe Depression, inaction followed. The Bill was “put by”.³ It was six years before the second formal convention would meet, this time over three sessions, in Adelaide and Sydney in 1897 and concluding in Melbourne in 1898.

But much had happened in the meantime. Federation Leagues had been established in the majority of colonies to promote the cause. In NSW, branches of these leagues organised what were to become important meetings in the Federation story: one in Corowa in 1893, and a People’s Federal Convention in Bathurst in 1896.

In between, while all the while the Federal Council continued to meet, a Premiers’ Conference was held in Hobart in January 1895. There the procedure to set in train a new convention was agreed to, leading to the popular election in early 1897 of 10 delegates in each of four colonies (with the West Australian parliament choosing its delegates, and Queensland remaining unrepresented). These 50 men then met on 22 March that year and, during sessions lasting several weeks at a time, up to 17 March 1898, they debated and conferred and drafted, and finally came up with a new Constitution for the Commonwealth of Australia.

In the form of a Bill for an Act of parliament, the Constitution was then submitted to the voters in four colonies in mid 1898, where it received approval in all but NSW. Then, following what its critics called the ‘Secret’ Premiers’ Conference, held in January 1899, certain modifications were made to the Bill, and it was put again to a referendum (this time with Queensland joining in) and passed.

The Australians had now completed their task of Constitution writing, and the means of federating the colonies had been determined. It took one more step to activate the process. Unlike in America, where independence had been achieved by declaration, followed by war, the Australian colonies pursued the alternative means of parliamentary enactment. A small delegation of colonial politicians took the Constitution Bill, completed and approved, to London in early 1900, and there, after a struggle with the Colonial Secretary over several provisions, they saw the Bill pass through the Imperial parliament, and receive the signature of the Head of State, Queen Victoria.

The West Australians acted at last, and held their referendum almost immediately, on 31 July. Its preparatory legal processes completed, the Commonwealth of Australia was proclaimed on 17 September, and inaugurated on 1 January 1901. But if good luck is best assured by ‘breaking a leg’, the Commonwealth was favoured in the weeks before, with a small hitch provided by its newly appointed Governor-General, Lord Hopetoun. It was Hopetoun’s job to nominate the first Prime Minister, who would hold office, briefly, until the infrastructure existed for the first Commonwealth elections.

Hopetoun chose the wrong man. In what has become famous as the ‘Hopetoun Blunder’,⁴ he picked William Lyne, the recently elected NSW Premier and prominent ‘anti-Billite’ (as opponents of Federation under the 1898/1899 Constitution Bill were called), thereby almost causing a mutiny among those colonial leaders who expected to serve in the interim Cabinet. But Lyne gave way and, acting this time on proper advice (one assumes), Hopetoun nominated the popular choice, Edmund Barton, the former NSW politician who had assumed the role of federalist leader and acted as both spokesman and statesman of the movement for almost the entire preceding decade. With Barton in his rightful place, the Commonwealth Inauguration took place on the first day of the new year, the first day of the new century.

If the history of Federation seems thus to have progressed in a smooth, lineal direction, one process unfolding after another, it is because the processes are now finished and the story can be told that way. But it has to be borne in mind that a very great deal more than this happened and might have happened, that the processes were often complex and confused, that no one knew for certain at the conclusion of one meeting whether the following step to which they had committed themselves would in fact be taken.

The Imaginary Nation

The Inauguration on 1 January 1901, however, was not the real beginning. For Australia to become a nation, Australians had first to imagine a nation. Before a nation can be formed, a group of separate populations must imagine themselves part of a larger national community. Then they must imagine it as natural and inevitable that such a community should exist. By the time a Constitution is written, the process is almost at its end.

But to write a Constitution is no simple matter. There is much more to it than just imagining a national community.⁵ Nations may remain in the imagination, as many have done in history. They may be imposed from without or formed as the result of conflict rather than dreams of kinship. For a nation to be made, that is, crafted, where one previously did not exist, political will must be generated alongside the imagined Constitution.

And, finally, if the political and legal skill is available, a viable real Constitution may be written and pass into law. This must describe not only the powers and jurisdictions of the new nation, but also its membership, including a guide to how the members are to co-exist thereafter.

“‘The Australian Nation’ of which we speak and hear so much,” wrote Robert Garran, who six years later was to become the great public servant of the new Commonwealth, “has never yet existed. Our nationality has hitherto been nothing but a sentiment, an idea. Nationality can have no real meaning, no real efficacy, unless it embodies the relations of a national citizenship.”⁶ It was the attempt to bring the imaginary and the real together that drove the Federation movement of the last two decades of the century.

The Australian Constitution was the product of this process. The fact that it still functions, whether smoothly or not, is a remarkable achievement on the scale of things. But that achievement is another story.

The nation that came into existence on 1 January 1901 was a nation just out of its chrysalis, still soft and fragile, fully formed but not quite recognisable. The sense of cultural community, the infrastructure of domestic sovereignty, the will for future complete independence all existed at that time, making Australia distinctively a nation. But full international sovereignty had not yet been achieved, nor was it sought.

A nation, but not yet a nation-state. A nation-state is a fully sovereign body in international relations and law; it may ratify treaties, engage in diplomacy, even invade another territory, without the risk that its actions might be legally overturned by an external body. A nation-state can perform what is called an Act of State for which there is no appeal outside its own parliaments or tribunals, “for which there might be a remedy by diplomatic representation, but not by litigation. The capacity to perform such an act belong[s] to the Sovereign alone”.⁷

In 1901, and for many years after, both the British parliament (in theory the British Sovereign) and the British Privy Council had the power to alter decisions made in Australia in so far as these affected external affairs. But the new Australian nation was sovereign in all domestic matters and this, combined with the overwhelming sense at the time that Australians had a distinctive, specifically Australian identity, made Australia a nation.

In the process of being formed, the nation was imagined as a community. In most of the references to community, the boundaries stopped at the borders of the territory we now know as Australia. But there was also a wider sense of community, sometimes including just England and Australia together, sometimes embracing the whole British Empire. Membership of this larger community did not rule out or diminish the sense of membership of the national community. Australia’s was both a post-colonial nation and a peculiarly Australian nation, domestically sovereign, culturally distinctive, but still tied in community, language and law to the nation from which it had sprung. At the time, this complex web of affinities seemed very satisfactory to almost everyone, and was nothing like the puzzle it would later appear to be.

The Australian Constitution captured in law the multiple identities of Australia’s population. Alfred Deakin, new Attorney-General in the new Commonwealth of Australia, pointed out in early 1902 that the Constitution, “large and elastic as it is, is necessarily limited by the ideas and circumstances which obtained in the year 1900”; it stands “and will stand on the Statute-book just as in the hour in which it was assented to. But the nation lives, grows and expands”.⁸

But 100 years later, while the nation has indeed evolved, grown and expanded (although nowhere near as much as imagined back then), the genesis of the Constitution in ‘the ideas and circumstances’ of its time has largely been forgotten. For many people, the Constitution seems always to have existed: to have been found fully formed, as if written on tablets of stone, or delivered in the mail-bag of the British Colonial Office. Nothing could be further from the truth.

The Australian Constitution was written by human mortals, in Australia itself. It was written through a long and complex process, with many drafts, over many meetings, by many hands. A Constitution is not a dog licence, as Edmund Barton himself declared.⁹ It cannot be written as a simple, transparent and technical act, where a single purpose is matched directly to a policy. Whatever we now think of the Constitution’s framers, those members of the various constitutional conventions of the 1890s, the idea that they could write a Constitution just as they chose, effectively to suit their own interests, and in isolation from the wider political culture, is unconvincing.

Not only did the framers have to produce a legally viable document, they had also to satisfy the inconsistent demands of each of the States, the interests of Britain, and the scrutiny of the Australian press. Ultimately, their Constitution had to attract a majority of votes in a referendum where the Australian electorate was effectively the final judge. It had to work.

The framers had to write a Constitution that expressed the values and standards of their period, at least sufficiently for their product to acquire general legitimacy. They were humans, not prophets and, needing to work collectively, they could not be hermits. They drew therefore upon the values, meanings, ideas and sources of inspiration available to them. Their document did not please everybody. Nor did it reflect everyone’s values. But it did attain sufficient legitimacy to establish a nation.

The Australian Constitution still stands, almost unchanged, as a reflection of the prevailing values of the 1890s. It is an artefact of that time, with all the hidden richness of a plain, colourless piece of flint, dug up by an archaeologist who knows that in it is captured a whole cultural system.

* Helen Irving lectures with the Faculty of Humanities and Sciences at the University of Technology Sydney.

This article is an extract from her book, To Constitute a Nation: A Cultural History of Australia’s Constitution, published by Cambridge University Press.

Endnotes

1. R Garran ‘The Federation Movement and the Founding of the Commonwealth’, in Ernest Scott (ed), Australia, vol VII, part I, of the Cambridge History of the British Empire Cambridge University Press, reprint 1988, at 425.

2. ‘Federal Council of Australasia Act, 14 August 1885’, in CMH Clark (ed) Select Documents in Australian History, vol. II, 1851-1900 Angus & Robertson Sydney 1977, at 457.

3. JA La Nauze The Making of the Australian Constitution Melbourne University Press 1988, at 86.

4. JA La Nauze The Hopetoun Blunder Melbourne University Press 1957.

5. Benedict Anderson has described this process in Imagined Communities Verso London 1983.

6. Commonwealth 1 October 1894.

7. K H Bailey ‘Self-Government in Australia’, in Ernest Scott (ed), Australia, vol VII, part I, of the Cambridge History of the British Empire Cambridge University Press, reprint 1988, at 416.

8. Quoted in G Souter Acts of Parliament Melbourne University Press 1988, at 74.

9. JA La Nauze The Making of the Australian Constitution, at 74.