Professor Helen Irving, A window onto our constitutional history
Constitution Day gives Australians an opportunity to learn more about, and reflect on, the processes that led to the creation of the Australian Commonwealth through the union of six self-governing colonies in 1901. Australia's enduring history of democracy is the product of those processes; the institutions of self-government under which we live today are inscribed in the Constitution's provisions. Its preamble refers to the agreement of the people of the colonies 'to unite in one indissoluble federal Commonwealth.'
These words are significant. They reflect the history and the aspirations of those who made and voted for the Constitution. The Constitution creates a national 'Commonwealth', a parliamentary democracy, for the benefit of all the people. The Constitution is also 'federal'. It protects the continued existence and operation of the States. The national character of the Commonwealth is embodied in the House of Representatives; the federal character in the Senate.
It was not without controversy that these parts of the Constitution were brought together. Many views were exchanged during the Constitution's framing and the referendums on the Constitution Bill in the late 1890s about the desirability and the workability of an arrangement which would give (almost) co-equal powers to both Houses, merging parliamentary democracy with federalism. In fact, this 'marriage' (for which many constitutional provisions were needed) has functioned remarkably well.
But there is a colourful history behind it, if you know where to look! It is a history that, unknown to many Australians, drew on the story of the American Civil War, and spilled over eventually into the grievances of one particular State.
On 31 July 1900 – 110 years ago – the eligible men and (newly-enfranchised) women of Western Australia voted in favour of joining the Commonwealth of Australia. They were the last to do so, but their vote was not equivocal. An unusually high number turned out to vote and many more than half were favourable. Western Australia, however, had dragged the federation chain. Special constitutional enticements had been offered to it (allowing the phasing out of its tariffs over a five-year period, whereas the others had to give theirs up almost immediately). The other colonies had been waiting for Western Australia to make its mind up; they now decided to go ahead. On 9 July, the Constitution Bill received the royal assent as an Act of the Imperial Parliament. The preamble records this sequence: 'Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania … have agreed to unite ...', it begins. Western Australia is missing. But the hope that it would join is expressed in a clause that follows: if within a year, the people of Western Australia agreed, their colony would join the Commonwealth as an 'original state'. The Western Australian referendum – or so it was thought – sealed the deal. People rejoiced that the six colonies would now be equal partners in the 'indissoluble Commonwealth'.
Many today who read the preamble may not notice the word 'indissoluble', or realise its significance. But, like a tiny window onto a broad landscape, it is the key to a significant history. The word was added only at the last moment, in the final session of the Federal Convention, in early 1898. Why was it chosen? In designing a federal Constitution, giving equal representation to each state in the Senate, the Australians had followed the United States example. They had rejected the other relevant federal model – Canada's Constitution of 1867 – as too top-heavy and centralist, conferring excessive powers on the federal government and insufficient powers on the provinces. They wanted a constitutional system which protected the rights of the states, while creating a national government to represent and maximise their common interests. The American Constitution of 1787 served these dual imperatives well. There was, however, one fly in the ointment – the Civil War.
The majority of the Australian framers were in their forties and fifties at the time of the second Federal Convention (1897–98), at which the words of the preamble were finalised. Most had young adult or teenage memories going back 30 years. Like other Australians, they had followed the progress of the United States, and they remembered the great constitutional tragedy suffered by that country in the 1860s. The Civil War had seen the American union torn apart following the attempted secession of the southern slave-owning states. These states maintained that the Constitution was merely a contract, from which they could break if its terms became adverse. They claimed a sovereign right to secession. Hundreds of thousands of men were to die over this claim.
Despite the Union victory in 1865, and a United States Supreme Court judgment of 1869 which declared the United States to be 'perpetual', 'indestructible' and 'indissoluble', some of the framers of the Australian Constitution, as well as members of the public, became anxious. If Australia was copying the American federal model, what was to stop a discontented state from seceding? Might an Australian civil war be possible?
The Civil War featured in many debates about the design of the Australian Constitution. Although the framers reassured themselves from time to time that the war had been fought over slavery alone, and that Australia therefore had nothing to fear, there were other views to contend with. Some argued that equal representation in the United States Senate and its substantial constitutional powers were the real cause. The southern states were encouraged to have an exaggerated sense of their rights. Some thought that the growing representation of non-slave states in the Senate was the issue. Victorian delegate (and future High Court Justice) Henry Higgins, who led the campaign against equal powers for the Australian Senate, told the Convention that as soon as the slave states found 'they were no longer to have a majority in [the] Senate ... [they] put into practice the doctrine they had long been preaching of the absolute right of any state to secede.' He felt 'chagrined', he said, to think that instead of trying to write an improved Constitution for Australia, 'we are going back to the first form of federation which was suggested'. Others noted the absence of words in the United States Constitution confirming 'indissolubility' or prohibiting secession. The Australian Constitution, as it stood until the final Convention session, was no different.
At last, the debate concluded with the inclusion of the word 'indissoluble'. As the great contemporary commentators on the Constitution, John Quick and Robert Garran, wrote, the word was added because of a perception that it was the 'omission from the Constitution of the United States of an express declaration of the permanence and indestructibility of the Union [that] led to the … disastrous doctrines of nullification and secession, which were not finally exploded until the Civil War … forever terminated the controversy'.
The story did not finish here, however. Western Australia, last to join, quickly wanted to leave. Only five years after Federation, its Legislative Assembly passed a motion declaring that: 'The Union of Western Australia with the other States has proved detrimental to the best interests of the State, and that the time has arrived for placing before the people the question of withdrawal from the union.' In response, in a pamphlet entitled 'Is Secession Possible?', (now Sir) John Quick reminded Western Australia that it had 'freely and voluntarily joined the Commonwealth in the full knowledge that it is not a mere ... partnership, dissolvable at will … but an indissoluble Federal Commonwealth'.
Still, the discontent did not subside. By the 1930s, it had reached crisis point. In 1933, under intense popular pressure, the Western Australian Government held a referendum on the question of secession. It was overwhelmingly approved. Ninety-one per cent of the voters turned out, and 68 per cent voted 'yes'. The following year, representatives of the Western Australian Government went to London, carrying with them a massive petition in a purpose-built box carved from Western Australian wood. They asked the British Parliament to alter the Australian Constitution, to release them from the Commonwealth. Faced with an anti-secession campaign simultaneously waged by representatives of the Commonwealth, the British Parliament took the diplomatic option: it set up a committee to decide whether it could receive the petition. At last, in 1935, it reached a conclusion: the United Kingdom could only respond to a request from a national government, 'speaking with the voice which represents it as a whole and not merely at the request of a minority'. Western Australia, in joining the Commonwealth, had surrendered its powers to request legislation from the United Kingdom. The Western Australians were downcast. There were calls to 'fight on', even appeals for a Fremantle 'sugar party' and a volunteer army to stop the Commonwealth collection of customs duties in Fremantle. But the reality was that the state would continue to be a valued member of the Commonwealth. While, from time to time, the question of secession is still raised in the west, the history of the Civil War – which the Constitution's framers captured in the word 'indissoluble' – still stands as a reminder of the greater blessings of union.