CHAPTER XXVII. THE CONSTITUTION
Responsible government and federation - The task of the Convention - Types of federal government - The Senate - The House of Representatives - Provision against deadlocks - The High Court - The Governor-General - Federal powers - The name 'Commonwealth' - New South Wales and the constitution - G. H. Reid's attitude - Referendums - Conference of premiers - The Bill before the Imperial Parliament - The Commonwealth proclaimed - First Parliament opened.
The task of the Convention was made easier by having the draft of 1891 as a model; and a comparison between the Constitution which it prepared and its predecessor shows both general resemblance and striking differences. Substantially the framework of the new edifice followed the lines laid down six years before. The departures lay in the widening of scope and the liberalizing of powers.
The main problem was to engraft a federal system upon responsible government after the familiar British pattern; which looks easy now that it has been done, but which appeared to be so exceedingly difficult to those who first attempted it that one who sat in both Conventions considered that 'either responsible government would kill federation or federation would kill responsible government.' The Commonwealth of Australia has not been impaled on either horn of the dilemma, but has successfully worked a system of federal government quite novel in design. Very learned men were engaged in this work of constitution building, and the student who examines the reports of the debates will see that every example of federation known to history had been studied by them. One distinguished man, a little hastily perhaps, or because it sounded well, said, in urging that exclusively British forms of government were best adapted to Australian conditions, 'As I do not wish my boots to be made in Germany, so I do not want my constitution to be made in Switzerland.' Quickly came the retort: 'I want my boots made where I find they fit me best.' The whole course of human experience was available, and the framers of the Constitution were ready to learn from every source. But certainly they did wish to retain the mode of constitutional government which the Australian people, understood, if it would work under a true federal scheme.
Australia consisted of six separate States, each endowed with complete self-government under the Crown. Not one of them need give up a shred of its independence unless it chose to do so. But in order that there might be a federation at all, these six independent States had to agree to surrender certain of their powers to the new supreme government which it was proposed to establish. When the Dominion of Canada was formed in 1867, the provincial Governments were made subordinate to the new central Government. The provincial Governors in Canada under the Dominion Constitution are appointed by the Dominion Government; and if the provincial Parliaments pass laws of which the Dominion Government disapproves, it can disallow them.
But the Australian States, in their pride of independence, were not content to agree to a union on those lines. Instead of creating a central supreme Government, which should take the powers it needed and leave the remainder to the States, they desired to grant to the Federal Government the powers which they chose to surrender, to define them in strict terms, and to retain the remainder in their own hands. They would be the granters of powers, not the recipients of such powers as the central Government did not desire to exercise.
The United States form of Federation was more to the taste of the Convention than the Canadian form. There the central Government exercises certain defined powers and cannot go beyond them. If it does, its action is illegal, and will he declared to be so by the Supreme Court of the United States. A constitution somewhat after that pattern was what Australia required, except for one very important difference.
In the United States there is not what is known as responsible government; and Australia wanted that also. The members of the President's Cabinet do not sit in Congress. They are responsible to him. Congress makes the laws, and the Executive - the President and his ministers - enforce them. But if Congress is not satisfied with the way the ministers do their work, it cannot turn them out. It can grumble, but cannot interfere. They are independent of parliamentary control. Australia wanted to have a federal Parliament in which ministers would sit, where they could be criticized face to face, where questions could be put to them, where they could be turned out of office if their policy or their administration did not satisfy the majority. So that, briefly stated, Australia wanted a form of government like that of the United States as far as regarded the strict limitation of its powers, but like the British system in respect to the responsibility of ministers to Parliament.
The Constitution was therefore made to provide that no minister shall hold office for longer than three months unless he he a member of Parliament. If a Government wishes to appoint a certain man as a minister, he must obtain a seat in Parliament. If no constituency will elect him, he cannot remain a minister.