The Online Library of Liberty

A project of Liberty Fund, Inc.

• Pubusher's Note
• Foreword
• Preface to the First Edition
• Preface to the Eighth Edition
• Introduction
• Outline of Subject: the True Nature of Constitutional Law
• Part I: The Sovereignty of Parliament
• Chapter I: The Nature of Parliamentary Sovereignty
• Chapter II: Parliament and Non-sovereign Law-making Bodies
• Chapter III: Parliamentary Sovereignty and Federalism
• Part II: The Rule of Law
• Chapter IV: The Rule of Law: Its Nature and General Applications
• Chapter V: The Right to Personal Freedom
• Chapter VI: The Right to Freedom of Discussion
• Chapter VII: The Right of Public Meeting 1
• Chapter VIII: Martial Law
• Chapter IX: The Army 1
• Chapter X: The Revenue 1
• Chapter XI: The Responsibility of Ministers
• Chapter XII: Rule of Law Compared With Droit Administratif 1
• Chapter XIII: Relation Between Parliamentary Sovereignty and the Rule of Law
• Part III: The Connection Between the Law of the Constitution and the Conventions of the Constitution
• Chapter XIV: Nature of Conventions of Constitution
• Chapter XV: The Sanction By Which the Conventions of the Constitution Are Enforced
• Appendix
• Note I: Rigidity of French Constitutions
• Note II: Division of Powers In Federal States
• Note III: Distinction Between a Paruamentary Executive and a Non-parliamentary Executive
• Note IV: The Right of Self-defence
• Note V: Questions Connected With the Right of Public Meeting
• Note VI: Duty of Soldiers Called Upon to Disperse an Unlawful Assembly
• Note VII: The Meaning of an “unconstitutional” Law
• Note VIII: Swiss Federalism 89
• Note IX: Australian Federalism 101
• Note X: Martial Law In England During Time of War Or Insurrection 121
• Note XI: Constitution of the Tribunal Des Conflits 159
• Note XII: Proceedings Against the Crown
• Note XIII: Parliament Act, 1911 [i & 2 Geo. 5. Ch. Ch. 13.]

Note IX

AUSTRALIAN FEDERALISM101

The aim of Australian statesmen has been to combine in the Constitution of the Commonwealth ideas borrowed from the federal and republican constitutionalism of the United States, or, to a certain extent, of Switzerland, with ideas derived from the unitarian102 and monarchical constitutionalism of England. They have also created for the Commonwealth itself, and retained for each of the several States thereof, the relation which has for years existed between England and the self-governing colonies of Australia.

Hence the Commonwealth exhibits four main characteristics: first, a Federal form of Government; secondly, a Parliamentavt Executive; thirdly, an effective Method for amending the Constitution; fourthly, the maintenance of the Relation which exists between the United Kingdom and a self-governing colony.

FEDERAL GOVERNMENT

The Commonwealth is in the strictest sense a federal government. It owes its birth to the desire for national unity which pervades the whole of Australia, combined103 with the determination on the part of the several colonies to retain as States of the Commonwealth as large a measure of independence as may be found compatible with the recognition of Australian nationality. The creation of a true federal government has been achieved mainly by following, without however copying in any servile spirit, the fundamental principles of American federalism. As in the United States so in the Australian Commonwealth the Constitution is (subject of course to the sovereign power of the Imperial Parliament) the supreme law of the land;104 the Constitution itself in the Australian Commonwealth, as in the United States, fixes and limits the spheres of the federal or national government and of the States respectively, and moreover defines these spheres in accordance with the principle that, while the powers of the national or federal government, including in the term government both the Executive and the Parliament of the Commonwealth, are, though wide, definite and limited, the powers of the separate States are indefinite, so that any power not assigned by the Constitution to the federal government remains vested in each of the several States, or, more accurately, in the Parliament of each State.105 In this point Australian statesmen have followed the example, not of Canada, but of the United States and of Switzerland. The methods again for keeping the government of the Commonwealth on the one side, and the States on the other, within their proper spheres have been suggested in the main by American experience. The Parliament of the Commonwealth is so constituted as to guarantee within reasonable limits the maintenance of State rights. For whilst the House of Representatives represents numbers, the Senate represents the States of the Commonwealth, and each of the Original States is entitled, irrespective of its size and population, to an equal number of senators.106 The Constitution, further, is so framed as to secure respect for the Senate; the longer term for which the Senators are elected and the scheme of retirement by rotation, which will, in general, protect the Senate from a dissolution, are intended to make the Senate a more permanent, and therefore a more experienced, body than the House of Representatives, which can under no circumstances exist for more than three years, and may very well be dissolved before that period has elapsed; then too the senators will, as the Constitution now stands, represent the whole of the State for which they sit.107 The States, again, retain a large amount of legislative independence. Neither the Executive nor the Parliament of the Commonwealth can either directly or indirectly veto the legislation, e.g., of the Victorian Parliament. Lastly, the law Courts, and especially the Federal Supreme Court, are, as in the United States, the guardians of the Constitution, for the Courts are called upon, in any case which comes before them for decision, to pass judgment, should the point be raised, upon the constitutionality, or, in other words, upon the validity under the Constitution of any Act passed either by the Parliament of that Commonwealth or by the Parliament of, e.g., Victoria. That this duty is laid upon the Courts is not indeed expressly stated in the Constitution of the Commonwealth, any more than in the Constitution of the United States; but no English lawyer can doubt that the Courts, and ultimately the Federal Supreme Court, are intended to be the interpreters, and in this sense the protectors of the Constitution. They are, be it noted, in no way bound, as is the Swiss Federal tribunal, to assume the constitutionality of laws passed by the federal legislature.

The founders, then, of the Commonwealth have, guided in the main by the example of the United States, created a true federal government; but they have, we shall find, as far as is compatible with the existence of federalism, imported into the Constitution ideas borrowed, or rather inherited, from England. This is specially visible in

THE PARLIAMENTARY EXECUTIVE

The Executive of the Commonwealth is a parliamentary Cabinet, such as has long existed in England, and as exists in all the self-governing British colonies. The authors indeed of the Australian Constitution have, true to English precedent, never made use of the word cabinet; they have not even in so many words enacted that the executive shall be a body of ministers responsible to the federal Parliament; but no one who has the least acquaintance with the history of the English constitution, or of the working of the constitutions which have been conferred upon the self-governing colonies of Australia, can doubt that the federal executive is intended to be, as it in fact is, a parliamentary ministry, which, though nominally appointed by the Governor-General, will owe its power to the support of a parliamentary majority, and will therefore, speaking broadly, consist in general of the leaders of the most powerful parliamentary party of the day. This cabinet possesses the most peculiar among the attributes of an English ministry, namely, the power, in many cases at any rate, to dissolve Parliament, and thus appeal from the body by whom the ministry was created to the people, or in other words to the electors, of the Commonwealth. We should here also observe that the powers of the Australian executive exceed in one respect the authority of an English ministry; an English cabinet may often dissolve the House of Commons, but can never dissolve the House of Lords. But an Australian cabinet can under certain circumstances cause, indirectly at any rate, the dissolution of the Senate. In studying indeed the Constitution of the Commonwealth great attention should be paid to this existence of the right or power to dissolve Parliament; it is not possessed by the President of the United States or by the Executive Council of the Swiss Confederation, and it is granted under the constitution of the existing French Republic only in a very limited degree to the French President; nor is there anything to make it certain that the President, even if being sure of the assent of the Senate he has the power to dissolve the Chamber of Deputies, will exert his authority at the request of the ministry,108 The point to be specially noted is that the Federalists of Australia have almost as a matter of course placed the executive power in the hands of a parliamentary cabinet; they have neither adopted the American plan of an elected President, whereby the administration of affairs is placed in the hands of a non-parliamentary executive, or the Swiss scheme of creating a semi-parliamentary executive, which, while elected by the federal Parliament, cannot be dismissed by it. It is true that it might have been found difficult to adjust the relations between a non-parliamentary or a semi-parliamentary executive and the English cabinet or the Imperial Parliament. But the difficulty is not one which need necessarily be insuperable. The true reason, it may be conjectured, why Australia has decisively adhered to the system of cabinet government is that a Parliamentary cabinet is the only form of executive to which the statesmen either of Australia or of England are accustomed. In one point, indeed, the executive of Australia may appear to bear an even more parliamentary character than does an English cabinet, for whilst, in theory at least, a statesman might be the member of an English ministry, though he were not a member of either House of Parliament, no Australian minister can hold office, i.e. in effect be a member of the cabinet for more than three months, unless he becomes a Senator, or a member of the House of Representatives.109 But here Australian statesmanship has followed the conventions rather than the law of the English constitution, for in practice an English cabinet always consists of men who are members or will become members either of the House of Lords or of the House of Commons. Indeed it is worth remark that in several instances where the Australian Constitution deviates from that of England, the deviation is caused by the desire to follow the spirit of modern English constitutionalism. Thus the elaborate and ingenious plan for avoiding in case of disagreement between the two Houses a parliamentary deadlock110 is simply an attempt to ensure by law that deference for the voice of the electorate which in England constitutional conventions enforce in the long run upon both Houses of the Imperial Parliament.

AMENDMENT OF THE CONSTITUTION

A federal constitution must of necessity be a “rigid” constitution; but the constitutions of each of the Australian self-governing colonies, e.g. of Victoria, have been in substance “flexible” constitutions of which the colonial Parliament could change the articles as easily, or nearly as easily, as any other law. Now the people of Australia have, we may safely assume, no desire to forego the advantages of a flexible constitution or to adopt a federal polity which should lend itself as little to amendment as does the Constitution of the United States, or should, like the Constitution of the Canadian Dominion, be amendable only by the action of the Imperial Parliament. Hence Australian Federalists were forced to solve the problem of giving to the Constitution of the Commonwealth as much rigidity as is required by the nature of a federal government, and at the same time such flexibility as should secure to the people of Australia the free exercise of legislative authority, even as regards articles of the Constitution.

Their solution of this problem is ingenious.

The Constitution of the Commonwealth is, looked at as a whole, a rigid constitution, since it cannot be fundamentally altered by the ordinary method of parliamentary legislation.

But this rigidity of the constitution is tempered in three different ways.

First, the Parliament of the Commonwealth is endowed with very wide legislative authority; thus it can legislate on many topics which lie beyond the competence of the Congress of the United States, and on some topics which lie beyond the competence of the Parliament of the Canadian Dominion;111 and it is here worth notice that the extension of the powers of the Commonwealth Parliament is facilitated by the fact that on many topics the federal legislature and the State Parliaments have concurrent legislative authority, though of course where a law of the Commonwealth conflicts with the law of a State, the federal law, if within the competence of the Commonwealth Parliament, prevails.112

Secondly, a large number of the articles of the constitution remain in force only “until Parliament otherwise provides”; they can therefore be changed like any other law by an Act of Parliament passed in the ordinary manner; in other words, the constitution is as to many of its provisions flexible.113

Thirdly, the constitution provides the means for its own alteration114 and embodies the principle, though not the name, of the Swiss institution known as the referendum. The process of constitutional amendment is broadly and normally as follows: A law changing the constitution must be passed by an absolute majority of each House of Parliament; it must then be submitted to the electors of the Commonwealth for their approval; if in a majority of the States a majority of the electors voting approve the law and also a majority of all the electors voting approve the law, it must be submitted to the Governor-General for the King's assent, and on receiving the due assent becomes, like any other bill, an Act of Parliament. The principle of the whole proceeding is that the constitution can be changed by a vote of the federal Parliament, ratified by the approval both of the majority of the States and of the majority of the Commonwealth electorate.

It should, however, be noted that under certain circumstances a law for changing the constitution which has been passed by an absolute majority of one House of Parliament only, and either is rejected by the other House or not passed by an absolute majority thereof, must be submitted to the electors for their approval, and if approved in the manner already stated, becomes, on the assent of the Crown being duly given, an Act of Parliament.

Add to this that there are a few changes, e.g. an alteration diminishing the proportionate representation in any State in either House of Parliament, which cannot be carried through unless the majority of the electors voting in that State approve of the change.115

What may be the working of new institutions no one will venture confidently to predict; but a critic of constitutions may entertain the hope that Australian statesmanship has accomplished the feat of framing a polity which shall have the merits both of a rigid and of a flexible constitution, which cannot hastily be changed, but yet admits of easy amendment, whenever alteration or reform is demanded by the deliberate voice of the nation.

MAINTENANCE OF THE RELATION WITH
THE UNITED KINGDOM

The founders of the Commonwealth have admittedly been influenced at once by a growing sense of Australian nationality, and by enduring, or even increasing loyalty to the mother-country. The one sentiment has been satisfied by the union of the Australian colonies under a federal government which secures to the people of Australia as complete power of self-government as is compatible with the position of a colony that desires to form part of the British Empire. The other sentiment has been satisfied by placing the Commonwealth itself as regards the mother-country in the position of a self-governing colony, and also by leaving the relation between each State of the Commonwealth and the United Kingdom as little disturbed as is compatible with the creation of the Australian Commonwealth. Each point is worth notice.

The Commonwealth of Australia itself is, as regards the Crown and the Imperial Parliament, nothing but a large self-governing colony. Thus the Governor-General is appointed by the Crown, i.e. by the English ministry, and fills substantially the same position as, before the formation of the Commonwealth, was occupied by the Governor, e.g., of Victoria. A bill passed by the Parliament of the Commonwealth, whether it be an ordinary law or a law which, because it affects the constitution, has been submitted to the electors for their approval, requires in order that it may become an Act the assent of the Crown,116 and the Crown can negative or veto bills passed by the Parliament of the Commonwealth just as it could, and still can, veto bills passed by the Parliament, e.g., of Victoria. The Imperial Parliament, again, has the admitted right, though it is a fight which, except at the wish of the Australian people, would most rarely be exercised, to legislate for Australia, or even to modify the constitution of the Australian Commonwealth. An appeal further lies on most subjects from the decisions of the federal Supreme Court to the English Privy Council, and even the limitations placed on such appeals when certain questions as to the Commonwealth constitution are raised are themselves subject to some qualifications.117 The broad result therefore is that as regards the Commonwealth the connection with the United Kingdom is retained, and the sovereignty of the Imperial Parliament is untouched.

The position of any State of the Commonwealth in regard to the United Kingdom remains pretty much what it was when the State, e.g. Victoria, was still merely a self-governing colony. The Governor of Victoria is now, as then, appointed by the Crown, i.e. by the English ministry. A bill passed by the Victorian Parliament still, in order that it may become an Act, requires the assent of the Crown. The Government of the Commonwealth possesses no power of putting a veto on bills passed by the Victorian Parliament. The right of appeal from a Court of Victoria to the English Privy Council stands, in most matters at any rate, substantially where it did before the passing of the Australian Commonwealth Act, except indeed that there is an alternative right of appeal to the High Court of Australia, for “the Constitution grants a new right of appeal from the Slate Courts to the High Court, but does not take away the existing right of appeal from the State Courts to the Privy Council, which therefore remains unimpaired.”118

The peculiarities of Australian federalism receive illustration from a comparison between the constitution of the Canadian Dominion119 and the constitution of the Australian Commonwealth.

The Dominion is from one point of view more, and from another point of view less, directly subject to the control of the Imperial Parliament than is the Commonwealth. The Dominion is more completely subject than the Commonwealth, because the greater part of the Canadian constitution120 can be amended only by an Act of the Imperial Parliament, whilst the Australian constitution can be amended by the people of the Commonwealth; this distinction, it is well to add, sounds more important than it is in reality, since we may feel morally certain that the Imperial Parliament would introduce any amendment into the constitution of the Dominion which was deliberately desired by the majority at once of the people and of the provinces of the Dominion. The Dominion of Canada, on the other hand, is less subject to the Imperial Parliament than is the Commonwealth, because the Provinces of the Dominion are in a sense less directly connected with the Imperial Government and Parliament than are the States of the Commonwealth.

Here however we come across the most important distinction between Canadian federalism and Australian federalism, namely, the difference of the relation of the federal power to the States, or, as in the case of Canada they are called, the Provinces, of the federation. The Dominion possesses all the residuary powers which are not under the Constitution conferred exclusively upon the Provinces; the Commonwealth possesses only those powers which are conferred upon it by the Constitution, whilst all the residuary powers not conferred upon the Commonwealth belong to the States.

The government of the Dominion, again, can exercise very considerable control over the legislation of the Provincial legislatures and over the administration of the Provinces; the government of the Dominion can in all cases put a veto upon laws passed by the Provincial Parliaments; the government of the Dominion appoints the judges of the State Courts; the government of the Dominion, lastly, can appoint and dismiss the Lieutenant-Governor of any Province, who therefore is neither an Imperial official nor a Provincial official, but a Dominion official.

[101]The Commonwealth of Australia Constitution Act, 63 & 64 Vict. c. 12. Quick and Garran, The Annotated Constitution of the Australian Commonwealth. Moore, The Commonwealth of Australia. Bryce, i. Studies in History and Jurisprudence, Essay VIII.

[102]See pp. 73–74, ante.

[103]See pp. 75–76, ante.

[104]Constitution ss. 51, 108.

[105]Ibid. ss. 106, 107.

[106]Ibid. s. 7. Such experience however as can be supplied by the events of eight years shows, it is said, that the Senate is absolutely hostile to the maintenance of State rights, and far more so than the House of Representatives.

[107]Ibid. s. 7.

[108]Esmein, Droit Constitutionnel, pp. 555–563.

[109]Constitution, s. 64.

[110]Constitution, s. 57.

[111]Compare Commonwealth Constitution, ss. 51,52, with Constitution of U. S., art. 1, ss. 1 and 8, and British North America Act, 1867 (30 & 31 Vict. c. 3), ss. 91, 92.

[112]See Constitution, s. 109.

[113]Ibid. s. 51, sub. s. xxxvi. compared e.g. with ss. 3, 29, 31, etc.

[114]Ibid. s. 128.

[115]Constitution, s. 28.

[116]Constitution, ss. 1, 58, 59, and 128.

[117]See Constitution, ss. 71, 73, 74.

[118]Quick and Garran, Annotated Constitution, p. 738. Thus an appeal lies from the Supreme Court of each of the States to the Privy Council from any decision of their Courts; as of right in circumstances defined in the several instruments constituting the Courts; by special leave from the Privy Council in all cases without exception. This rule applies to the exercise of any jurisdiction, whether State or federal, vested in the State Courts, but the State Courts have not full federal jurisdiction. From their power are excepted all cases involving the relation inter se of the States, and the States and the Commonwealth.

Appeals lie also from the State Courts to the High Court of Australia in matters both of State and federal jurisdiction on terms defined in the Judicature Act, 1903, of the Commonwealth Parliament. The appellant has of course the choice of appeal. There is nothing to prevent an appeal from such Courts to decide whether any particular case falls under sec. 74 of the constitution or not. Nor is there any mode of preventing contradictory decisions on matters other than questions arising as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, or to the limits inter se of the constitutional powers of any two or more States which cannot reach the Privy Council. The High Court further is not bound to accept the rulings of the Privy Council as superior to its own except in those eases where an actual appeal is successfully brought not from the Superior Court of a State, but from the High Court to the Privy Council.

[119]See Munro, Constitution of Canada.

[120]But certain important though limited powers are under the constitution itself, i.e. the British North America Act, 1867, given to the Dominion Parliament and to the Provincial legislatures, enabling them from time to time to amend their constitutions (Munro, Constitution of Canada, p. 229). See e.g. B. N. A. Act, 1867, ss. 35,41,45,78, 83,84.