This is a transcript of a lecture given by Professor John Williams at the National Archives of Australia on 9 July 2007 – Constitution Day.
'A day in the life'. When I was asked to speak about the values of commemorating a Constitution Day, I pondered what it meant to remember a single day. In particular, what is it about this day in the life of the Constitution that should command us to pause and reflect? What should we do with the other 39,179 days since 9 July 1900? We could also add the decade before that, when Australians hammered out, and politicians hammered out, the compact that turned the colonies into states.
The 'day in the life' question made me think of the fact that it was 60 years ago this year since Sergeant Pepper taught the band to play. The Beatles released Sgt. Pepper's Lonely Hearts Club Band on 1 June 1967.
The Beatles and the Australian Constitution: not an obvious mix. As someone born in 1967, whose working life has involved pondering the 128 sections of the Constitution, it appeared apt to me the Australian Constitution and the Beatles have literally been the words and music of my life – as sad as that sounds.
[laughter]
'The day in the life' is the last track on side two of the album. That's pre-CD thinking for all of us. The song itself has a famous crescendo, when the orchestra, at its own pace, strikes major E after 24 bars of designed individualism. The discordant voices crowd each other out, until the climax, when they come together as one. Was this, I thought, a metaphor for protracted negotiations involved in the Constitution Bill throughout the 1890s, as delegates in the people's movement vied to be heard, yet coming together in one united Commonwealth?
Looking at the rest of the songs on the album, it is possible to think up analogies for the Federation movement and the road to Centennial Park on 1 January 1901.
'With a little help from my friends' – is this an ode to Edmund Barton, the acknowledged leader of the Federal movement? 'Getting better' – a poignant commentary of the democratic improvements in the Bill from 1897 to 1898? 'She's leaving home' – a lament about cutting the ties with the new nation with the mother country? 'Good morning, good morning' – an expression of the excitement that many felt of the framers as they noted the end of the negotiations with the Colonial Office in 1900?
Of course, all good metaphors can come unstuck. What are we to do with songs like 'Lucy in the sky with diamonds'?
[laughter]
Unless this is a cryptic reference to the Queensland vessel, the Lucinda, and its ill-fated voyage off Sydney in 1900.
As many of you would know, there are questions – and not-so-subtle questions – in the reference and the lyrics of the Beatles' music. For instance, if you play songs like 'Abbey Road', what happens? If you play it backwards, we discover that Paul McCartney is dead. What would happen if we read the Constitution backward? Would it be like some country and western song where the truck springs into life, the wife returns and the dog gets better?
[laughter]
If we read the Constitution backwards, would the states get their financial powers back, the Commonwealth return power over industrial relations and Federalism get better?
Speaking of the 'Fab Four', there's obvious links that could be drawn between the Beatles and the framers of the Australian Constitution. A link could be drawn between George Harrison and his interest in spiritualism and India, and Alfred Deakin. I would leave it to others to make comparisons, but I thought a case could be made that Sir John Downer is Ringo Starr.
[laughter]
A reliable back-beat, generally held his own in better company and was unable to have a successful solo career.
[laughter]
I'd now like to move on to 9 January 1900 and review what actually happened on that day and the commemoration of Constitution Day.
The ninth of July, as we know, was the day in which Queen Victoria gave Royal Assent to the Constitution Bill at Windsor. This was the twilight of the Victorian age, as Alfred Deakin, the great chronicler of humanity and its weaknesses, noted that the Queen was in decline. Having met her in 1887, and again in 1900, her faculties were slipping.
As he wrote, 'She received the Australian sitting. Her voice was low and indistinct. She was partly deaf and required to be reminded in a loud voice, "who they were". Her eyes had lost sight behind great clumsy spectacles of great power, but which she could only read with the largest writing. Her limbs and senses were failing, and it was only reasonable to assume that her intellect was also suffering'.
'She smiled upon the delegates, but this time not royally, as in 1887, but with the weakness and weariness of an old woman. She remarked to the Deakin that she remembered his previous visit. Though, as Mr Chamberlain's loud tones reminded her of that fact, were perfectly audible to him and his colleagues and their wives around him, he was unable to join in the chorus of amazement in the anteroom of her astonishing memory'.
By 26 January 1901, 21 days after the ceremonies in Centennial Park, she was dead. On 9 July, Joseph Chamberlain, the secretary of state for the colonies, wrote to Edmund Barton – the leader of the London delegation – noting the royal approval and a gift.
Chamberlain stated that he was glad to inform Barton that the Queen had 'assented to my suggestion that she should sign the Commission, giving Royal Assent to the Commonwealth Act, in duplicate, in order that you may have a copy for the preservation in the Federal Parliament'. He further noted that the Queen would make a gift of the table, the inkstand and the pen with which she signed the commission.
There remained some contention as to who made this suggestion. However, Barton accepted all with good grace, and, writing to Chamberlain, saying that the duplicate would be a gift that would be a 'treasured possession of the Commonwealth'.
Four days before, on 4 July, the third reading speech of the Bill had taken place. The House of Lords, and in the House of Lords, Lord Stanmore took the opportunity to quiz Earl of Selborne about the aspects of the Bill. He called attention to the words 'external affairs' in the Bill, in clause 51. 'How', he asked, 'are these words to be interpreted? They may be interpreted in a vastly extended sense or a very restricted sense'. The answer suggested the narrow sense, though history would suggest the broader sense.
The remainder of the debate was taken up with the thorny issue of appeals to the Privy Council. In general, the words, the lords rehearsed these arguments had been made in London over the last three months.
On the ninth of July, the Lord Commissioners – the Earl of Halsbury, the Earl of Hopetoun (the former Governor of Victoria) and Earl of Kintore (the former Governor of South Australia) – announced to the House of Lords that Her Majesty had assented to the Bill. The announcement was received with cheers.
While 9 July is a special day in the life of the Australian Constitution, it was the start of another working week. In London, The Times reported of the latest events from around the world and home. The telegrams from special correspondents brought news of the crisis in China, as the Boxers revolted.
The Boer War was in the news. One correspondent stated that he had on good reason to believe that the Boers would struggle for internal self-government, and they would be never willing to consent to any settlement which would crush the Afrikaner nation.
Oxford played Cambridge, at home, at cricket. The Oxford captain, Mr RE Foster, could not have been better, making 171.
News from New South Wales was reported. Floods. 'The Hawkesbury Valley was submerged, and there was a great flood around Goulburn. Families had to be rescued from trees and the tops of houses in boats' , The Times correspondent informed its readers.
Back in Australia, the papers noted the events of the day. Again, the crisis in China and the Boer War dominated the international telegrams in Sydney, Adelaide and Melbourne. The Adelaide Advertiser reported at length on the frozen rabbit trade, the dried fruit season and the copper market.
The news from London of the Royal Assent had not yet reached Australia. What news there was of Federation related to speculation that Lord Jersey had found favour and may be Australia's first Governor-General. The correspondent did note that, while he was well-liked, he was not what you would call a strong governor for awkward crisis. The same correspondent reported that Chamberlain and his battle with the Australian delegates over section 74. They regretted that Chamberlain had entered into a compromise with the touchy trio of Barton, Deakin and Kingston.
The Sydney Morning Herald also took the opportunity to give a long retrospective of the Federal movement, from 1849 until the eve of Royal Assent. It ended the article with the account of the efforts of the noble son, Barton, and to the cause. As this was a Monday, the paper also had full accounts of the weekend's sport – the turf, the Sydney Hunt Club, the football were given significant column inches, under the unlikely heading of 'Sporting Intelligence'.
[laughter]
For those interested, South Sydney defeated Western Suburbs in a low-scoring eight to six match before a crowd of 5000 before the SCG.
In Melbourne, the Argus reported the passage of the Bill through the Lords. It also picked up on the sporting theme, noting the university match in London and the splendid efforts of the Oxford captain. Under the heading, 'A Magnificent Struggle', the paper did not report the exchanges between Chamberlain and the touchy trio of Australia delegates, but rather the fact 'Essendon has been showing poor form of lately, but rallied rather under Captain Stuckley's stirring speech before going onto the field on Saturday, and gave Fitzroy a hard run and left the ground fully satisfied'.
[laughter]
News of the Royal Assent did not reach Australia until 11 July. The Sydney Morning Herald told its readers that the Queen had put the finishing touches on the work which makes Australia a nation.
The editorial gushed that 'when the long record of Her Majesty's reign is reviewed, it is safe to predict that no act of her sovereignty is more likely to transcend this in historical importance or in its far-reaching consequences. A continent has been consolidated at a stroke of the pen, into a stable dominion of the Crown, and into a nation inhabited by men and women who Britons can recognize as their own composite race and kindred'.
Not to let the moment pass, the Herald highlighted that there's only one drawback to be the satisfaction with the result of the sacrifice, and that was the sacrifice, 'for the time, the right of the Premier and mother colony to possess within its border the capital of the Federal Australia'.
Details of the duplicate copy and the Commission and the gift of the inkstand and pen were also discussed. And the Herald, the day before, also reported that 'yesterday was a clear day, so far as the Bubonic Plague is concerned, making it the eighth day in succession'.
So, what to make of the events of 9 July? It was a small snapshot of the papers demonstrated – just another day. The Australian Constitution Day 1900, and indeed every day since, has seen the Constitution as part of the backdrop of how we live our lives. It is no surprise that even on those days when the Constitution would be expected to have prominent place in the news that it competed with international affairs, politics, economics, entertainment and sport. And so it was, and so it shall be.
But this is not to say that the Constitution Day is not a worthy endeavor. There would appear to be, for me at least, four reasons why Constitution Day should be used to commemorate the federation of the Australian states and the creation of the Commonwealth.
The first is historical. Having taught many students, I once had the opportunity to teach American students and Australian students about the Constitution. And I asked the American students, 'Pitch me the story of the American Constitution as if it was a movie'. And they quickly told me about war and blood and horses and this great story, and then started even suggesting actors who could lead the positions.
I asked the Australian students to do the same with the Australian Constitution. After an awkward pause, someone put their hand up and said, 'we voted'.
I'd take the vote every time. And that's something I think we should celebrate.
There is a good story to be told about the drafting of the Australian Constitution. The procedural steps has been methodically unearthed by historians such as John La Nauze in his classic, The Making of the Australian Constitution. The drafters themselves – Deakin, Wise, Reid, Quick and Garran – all outlined their part, and the parts of others, in the founding.
One of the legacies of the centenary of Federation was the opportunity for other constitutional historians to revisit the story and leave future generations with a marvelous body of new scholarship. So, for instance, Helen Irving, who is here with us today, and John Hirst, reminded us that there was a cultural and a sentimental story to be told about how we bolted together the colonies into one nation.
Moreover, the story of Federation, it's a good yarn. There are moments of high political drama, low self-interest. There is unashamed parochialism as well as remarkable statesmanship. While politicians were the driving force behind the movement, it's not exclusively a political story. The newspapers of even the smallest hamlet all chronicle the attitudes of those people to the national debate.
There is as Helen Irving and John Hirst says, emphasize an imagined community out there. Before the people could draft a Constitution they had to, at least in one sense, constitute themselves as a nation. So, the literature, the sport, the musics all have a role in the Constitution.
It was a time when women, as Helen Irving suggested in her writing, played a prominent part in that debate. The new woman and the new Constitution are linked. In at least two colonies, they voted for and against the Bill. Indeed the role of the people in their imprimatur on the process is itself a unique constitutional-making aspect of the time.
With the exception of the two World Wars, it would be possible to argue that the Federation debate focused national attention like no other event in the nation's history. Notwithstanding the fact that opinion was divided, it was not about the concept of Federation. Those who voted 'no' opposed the Bill. And they were at pains to emphasize that they were 'anti-bill-ites', not 'anti-federalists'.
The history of the Constitution is a political, cultural and legal story. And as such, it can be accessed from all those avenues. The second reason, I think, from which we can think about the Constitution is a notion of civic virtue. The Constitution is a story of public life. As a document it establishes the institutions of Australia.
It brought into existence the new Commonwealth and it transformed the colonies into states, or in South Australia's case, the province into a state. That's for John Bannon sitting there.
The document was a source of establishing the institutions of public life: the Executive, the Parliament, the High Court. All owe their existence to the Australian Constitution. All the institutions have proved to be exceptionally resilient. The Australian Federation is amongst the oldest continuously federal systems in existence. Its stability in part reflects the decisions of its designers and a commitment to an Australian public life.
What republican scholars, as I have noted, described as civic virtue. The framers did not constitutionalise every personal belief. Doubtless their views on race, the role of women in public life and Australia's place in the empire, to take but three examples, would not accord with contemporary Australian values.
Moreover, they did not and could not perceive of the changes in technology that influenced all parts of our lives. Yet, on more than one occasions, they deliberately put aside their deep held beliefs and left it to the Commonwealth Parliament to determine. 'Trust the people who are elected by the people', was a rejoiner often heard in the convention debates.
This was as intergenerational generosity, is a feature of the Australian Constitution. Australians in 1900 and now are committed to public life, which the Constitution mandates. The Parliament shall be directly chosen by the people. The Constitution shall only be changed with their formal consultation. Moreover, an innate public commitment to public or semi-public action is expected by the Constitution and the people themselves.
Last week, the Australian Bureau of Statistics started to announce the results of the 2006 Census. Around the kitchen table in June last year, millions of Australians sat down and took part in a very private, but significant, public act. I note that the last Census report – that one in five Australians are volunteers.
We can all be concerned about the level of engagement and the depth of the commitment in the public life of Australia. But, no one could seriously doubt that it exists. In short, the Constitution creates and demands a public life. It is a public life which Australians appear to be responsive to and committed to.
I can touch on the third point, which is relevance and change. The third reason for pausing and considering the Constitution on this day is that it provides a chance to consider its relevance. The Constitution is deeply relevant to Australians, even though they may not recognize it.
Historically, the great social and economic disputes Australia has witnessed have been of constitutional dimensions. So, for instance, the role of industrial relations has been the mainstay of the High Court in its litigation. From the question of whether the Constitution should have an industrial power, debated in 1897 to Work Choices in 2006, the issue is a constitutional aspect.
The banning of dissent in times of war, the regulation of banks and political advertising on television have all raised constitutional, as well as political and economic and social issues.
Often the Constitution issued does not have to be controversial to be at the heart of the story. The front page of any newspaper often can be viewed from the prism of the Constitution from the Commonwealth intervention in the Northern Territory regarding the sickening issues of child abuse to the provision of medical services.
One of the curses of being a Constitutional lawyer is that every Ministerial announcement or every news story immediately turns one's mind to asking, yes, but how can they do it?
One reason why the Constitution is relevant is partly because of the way it is being changed. The Australian Constitution has been, as I said, remarkably resilient from formal change. Global warming, I doubt, will disturb Jeff Shaw's description of Australia as a frozen continent, constitutionally speaking.
The most significant amendment, of course, was 1967: the amendment of the constitutional issues to remove section 127 and change the reach of the race power. It is a story of political, social and constitutional change. The actions of Indigenous and non-Indigenous leaders provide one example of how one day in the life of the Constitution, 27 May 1967, can be used to tell a rich story of relevance.
The role of the High Court in changing the Constitution through interpretation is another means by which the relevancy can be demonstrated. As noted, most of the major social and political disputes of Australia may be told through the pages of the Commonwealth Law Report. Though I must say, not with a great flourish that you would expect.
Many in this room have written on the correctness or otherwise of the court's decisions. However, as a medium of applying the words of 1900 to today, the court has been an effective voice. The court has, in the words of Alfred Deakin, 'transfused the Constitution with new blood' or in the more lofty rhetoric of Andrew Inglis Clark, 'made it a living force'.
If I could lastly look to the future. The discussion of the Constitution need not and should not be only about the past. What kind of Constitution do we want, is another way of asking, what sort of country should be?
Having spoken to a number of student constitutional conventions, there is an iron law of constitutional thinking adopted by students. Change the Constitution and the desired political and social outcome will automatically follow.
Alter it, even by the most minor change, and the Constitution will descend into anarchy or dictatorship, take your pick. Neither of these are true because they fail to factor in the political and social culture of Australia and what the public life demands.
The change should be one of the reasons for considering Constitution and Constitution Day. The Australian Constitution, for all its stability, is a rather bland piece of work. As fascinating and challenging as some of the sections are, in terms of the technical nuances, it's not blessed with soaring rhetoric.
'Be it, therefore, enacted' is not the kind of rhetoric in the preamble one gets the blood pumping. The sentimental story that lies behind the Constitution is not reflected in its words. Some might say that they are glad that that's the case. However, the world and the Australian community has changed since the Sydney Morning Herald editorialized about the 'composite race and kindred nature of Australia with home'.
What is means to be an Australian is arguably a more complex question than it was in 1900. The Constitution as Canadians, South Africans and perhaps now the British believe, may provide a repository of collective values. Thus, it is in my view inevitable that any discussion of the Constitution must reflect upon the future of the document.
Topics will arise in any conversation must include: the republic, the preamble and the place of Indigenous Australians in that statement, the role and future of the states in the Federation, a charter or Bill of Rights, (a debate, I might note, we've been having since 1891 and Andrew Inglis Clark's first draft of the Constitution). We should, however, be confident that we can debate these issues with the same confidence that the framers of the Constitution did in the 1890s.
In conclusion, can I commend the National Archives of Australia for bringing us together to celebrate 'a day in the life of the Australian Constitution'. It's the kind of forward thinking one would expect from a repository of the past. In the same year as the Beatles released Sgt. Pepper's Lonely Hearts Club Band – 1967 – Bob Dylan released John Wesley Harding. Its relationship to the Australian Constitution? Well, that's another story. Thank you.