Federation and the Australian Constitution

Timeline of Federation

The path to Australian Federation involved several key events and influences:

• 1867: British North America Act establishes Canadian federation.
• 1885: Federal Council of Australasia formed.
• 1889: Tenterfield Oration by Sir Henry Parkes advocates for an Australian government and parliament.
• 1890: Australasian Federal Conference in Melbourne.
• 1891: National Australasian Convention proposes a federal system.
• 1897-1898: Australasian Federal Convention drafts the Constitution.
• 1899: Referendums held in various colonies on the draft Constitution.
• 1900: London Delegation negotiates with the United Kingdom Government.
• January 1, 1901: Commonwealth of Australia established; Edmund Barton becomes caretaker Prime Minister.
• March 29-30, 1901: First federal election.
• May 9, 1901: Parliament opens.
• October 6, 1903: High Court of Australia holds first sittings.

What is Federation?

Federation involved overcoming several hurdles:

• Class suspicions.
• Intercolonial and intra-colonial rivalries, such as between Sydney and Melbourne, and between larger and smaller colonies.
• Separation movements within Queensland.
• British oversight and Imperial interests.

Key Events and Conventions

• Australasian Federal Conference, 1890: This conference addressed the need for a federal polity to handle defense, trade, and customs, and to protect the rights of the colonies.
• National Australasian Convention, 1891: Representing seven colonies, this convention aimed to create a federal system and define a constitutional structure.
• Drafting Committee, 1891: Key figures included Charles Kingston, Samuel Griffith, Andrew Inglis Clark, Edmund Barton, and Thomas Playford.
• Australasian Federal Convention, Adelaide, 1897: Queensland equivocated, and New Zealand withdrew. An agreement was reached that the national Parliament would have limited (defined) powers, with the States retaining the rest. Contentions arose over federal finance, rivers, and the Senate. Amendments were made by referendum.
• Australasian Federal Convention, Sydney, 1897: Queensland did not participate.
• Australasian Federal Convention, Melbourne, 1898: This convention added powers over industrial arbitration, old age and invalid pensions, provided for religious freedom, and outlined a method for resolving deadlocks between the House of Representatives and the Senate. The draft Constitution was presented.

Referendums

Referendums were held in various colonies to gauge support for federation. Here's a summary of the results:

• South Australia (April 29, 1899): 79.46% For, 20.54% Against, 54.4% Turnout.
• New South Wales (June 20, 1899): 56.49% For, 43.51% Against, 63.4% Turnout.
• Tasmania (July 27, 1899): 94.4% For, 5.6% Against, 41.8% Turnout.
• Victoria (July 27, 1899): 93.96% For, 6.04% Against, 56.3% Turnout.
• Queensland (September 2, 1899): 55.39% For, 44.61% Against, 54.4% Turnout.
• Western Australia (July 31, 1900): 69.47% For, 30.53% Against, 67.1% Turnout.

Road to Federation

Major issues in finalizing the federation included:

• Appeals to the Privy Council: These were still possible, but a High Court certificate was required for questions regarding the limits between the Commonwealth and the States.
• Negotiations with the United Kingdom Government.
• Western Australia's concerns about customs duties.

Commonwealth of Australia Constitution Act

The Commonwealth of Australia Constitution Act 1900 (UK) constituted the Commonwealth of Australia. Clause 7 abolished the Federal Council of Australasia.

The British North America Act 1867 (UK) influenced the Australian Constitution. Key aspects include:

• More centrally driven compared to the US system.
• Provincial powers are listed, while unlisted powers are federal.
• Borrowed Canada’s s 91.

Influences on Australian Federalism

The United States Constitution significantly influenced Australian federalism.

• Parliament and Congress: The names of the two Houses of the Australian Parliament (House of Representatives and Senate) were influenced by the US Congress.
• The first three chapters of the Australian Constitution follow the first three articles of the US Constitution:
  • Chapter I (Article I) à Legislature
  • Chapter II (Article II) à Executive
  • Chapter III (Article III) à Judicature
• The federal jurisdiction of courts is heavily indebted to US federal jurisdiction.
• Preamble: The inclusion of the word ‘indissoluble’ was influenced by the American Civil War.
• Use of the term ‘Commonwealth’: Borrowed from Massachusetts, Pennsylvania, Virginia, and Kentucky.

Electoral Franchise – Race

• Sections 8 and 30: State law determined the qualifications of electors for the Senate and the House of Representatives until a federal electoral law was established.
• Section 25: If people of any race are disqualified from voting in State elections, they are not to be counted when calculating the number of electors in a State for a federal election.
• Section 127: Aboriginal people were not to be counted when calculating the number of electors (nationally or in a State) for a federal election. This was repealed in 1967.
• Separate legislation prohibited Aboriginal, Asian, African, and Pacific Island people from voting, but any Maori in Australia could.
• Commonwealth Franchise Act 1902 (Cth) s 4.
• Section 41 of the Constitution allowed people who had been on a State electoral roll for federal elections before 1902 to retain the right to vote.
• Aboriginal men in South Australia could vote in State elections but not federal elections.
• Commonwealth Electoral Act 1962 (Cth).

Electoral Franchise – Women

• 1861: South Australian women could vote in local elections.
• 1894: South Australian women allowed to vote and stand for parliament.
• 1899: Western Australia (vote).
• 1902: Federal (vote and stand).
• 1903: New South Wales (vote).
• 1905: Tasmania.
• 1908: Victoria (vote).

High Court of Australia

• Section 71 of the Constitution establishes the High Court of Australia, vesting it with the judicial power of the Commonwealth.
• The High Court consists of a Chief Justice and other Justices.
• Judiciary Act 1903 (Cth).
• Composition:
  • Three justices (1903).
  • Number of justices increased (1906, 1913).
• Appointment, tenure, and remuneration: s 72 Constitution.
• Appeals to Privy Council possible.

Federal Jurisdiction and Federal and State Courts

• Discretionary power to create other federal courts.
• Existing state Supreme Courts – s 77(iii) Constitution invested with federal jurisdiction by s 39 Judiciary Act 1903 (Cth).
• Autochthonous expedient: Boilermakers' Case (1956) 94 CLR 254.
• First federal courts: Commonwealth Court of Conciliation and Arbitration (1904) and Federal Court of Bankruptcy (1930).

Privy Council

• Original and appellate jurisdiction.
• Heard colonial appeals.
• Statutory jurisdiction first regulated in 1833: Judicial Committee Act 1833 (UK).
• High Court bound by Privy Council decisions until Viro v The Queen (1978) 141 CLR 88.
• Termination of appeals to Privy Council from High Court.
• Still possible from State Supreme Courts until 1986.