Common(wealth) Knowledge #13: Democracy and drafting the Constitution
Updated: Sep 18, 2022
A look at the key steps in the development of the Australian Constitution.
On 4 September, Chileans went to the polls to vote on a proposed progressive constitution, 61.9% of voters cast their ballots against it. This is despite the original 2020 proposal to call a constitutional convention to draft a new constitution receiving 80% approval, as the current one was made by the dictator and general Augusto Pinochet. However, it has led to much political discussion in legal circles, including in Australia, about constitutional processes. So, in this edition of Common(wealth Knowledge), we’re going to retrace the key steps in the development of the Australian Constitution and consider the democratic processes behind its creation.
Discussion amongst politicians of some form of intercolonial government dates back to a proposal made by Edward Deas Thomson, a member of the New South Wales Legislative Council and Colonial Secretary of NSW, in a letter to the British Colonial Office in 1846. The following year, Secretary of State for the Colonies, Henry Gray, the 3rd Earl Grey (son of the Earl Grey the tea is named after), endorsed a proposal to create a body that could deal with intercolonial matters.
The primary issues were economic. They included tariffs on traded goods, regulating railroads, and the post office, all of which involved crossing colonial borders. Discussions really started after the Australian Colonies Government Act 1850 (Imp) gave Legislative Councils to Victoria, Van Diemen's Land, and South Australia. However, these were mostly done independently within each colony. Trade unions began talking across colonial borders in response to colonial governments imposing tariffs on one another, under the Australian Colonies Duties Act 1873 (Imp). 12 years later, the Federal Council of Australasia Act 1885 (Imp) was passed, creating the first council of colonial governments.
The 1890 Conference was held in Melbourne, and was attended by two politicians from each colony and New Zealand, and was spurred on by popular support for Federation after Henry Parkes’ speech in Tenterfield, the first time that any politician had discussed Federation with the public. Although they didn’t agree on anything of substance, all delegates agreed to meet the following year, and that Federation’s time had finally come. In the meantime, Tasmania’s Attorney-General, Andrew Inglis Clark, would write a draft of the Constitution.
The 1891 Convention met in Sydney the following March, and 46 delegates represented the six colonies and New Zealand, which was still entertaining the idea of Federation. Although the delegates were not elected by popular vote, many were politicians, and all were chosen by their respective Parliaments. Clark, who was always of poor health, did not attend, but Queensland’s Premier, Samuel Griffith, edited his draft. However, the limited democratic mandate of the delegates meant that the draft constitution stalled in the colonies’ legislative bodies. This was at a time when some state legislative houses were made up of appointed, not elected, men.
The Australian people properly entered into the process at the Corowa Conference of 1893. As had happened in the past, politicians were losing interest in the idea of Federation again, but this time the people were onboard. Local Federation Leagues had formed throughout Victoria and New South Wales, and with the support of the Australian Natives Association (‘native’ meaning white people born in Australia, not Indigenous Australians) they convened at Corowa on the NSW-Vic border. At Corowa, lawyer John Quick created a plan for public involvement in Federation, which NSW Premier George Reid endorsed, and he convinced the other premiers to agree.
With colonial governments still dragging their heels, despite the popular support for Federation, Clark re-entered the fray. Using his position on the Federal Council of Australasia and his role in drafting the Constitution, he convinced the premiers to meet in Hobart in 1895. They did, and Reid announced that the colonies would make plans for the 1897-98 Convention.
The 1897-98 Convention was much more democratic. All delegates were elected by the people directly, and they then had the opportunity to vote for Federation via referendum. But, on the other hand, Queensland’s Parliament had not passed the necessary legislation to allow for these elections, and so one entire colony was not in attendance, and Western Australia’s relative isolation meant that their attendance was sporadic, and so that colony only had a limited say. Again, Clark did not attend, largely for health reasons, but even though the original author of the draft constitution was not present, he received regular updates by telegraph, and often communicated with Edmund Barton. Griffith, now Chief Justice of the Queensland Supreme Court, was also absent, but also regularly communicated with the delegates.
The Federal Constitution Bill was put to citizens of New South Wales, South Australia, Victoria, and Tasmania to vote on in a referendum in 1898. This form of popular democracy proved successful, as all four colonies voted for it, but New South Wales’ government required 80,000 ‘yes’ votes, which they did not achieve. Therefore, to convince all colonies to agree, the six premiers held a ‘secret’ meeting in Melbourne. The media and public knew about it, but it was ‘secret’ because they were unable to attend. Once some changes were made, another referendum was held in 1899, with the original four colonies and Queensland agreeing. New South Wales had removed its vote threshold. Western Australia voted ‘yes’ the next year.
However, there was one final stage in the process. The British Parliament had to pass the Constitution as legislation. This is why the Constitution consists of 9 ‘covering clauses,’ with the 9th clause being the actual text of the Constitution. The first 8 are standard legislative provisions, reflecting the role of the British Parliament. For example, covering clause 7 repeals the Federal Council of Australasia Act 1885 (Imp), as it was no longer necessary.
It is a result of the British Empire that the UK government had control over so much of Australia’s government, in what is arguably the least democratic component of the Constitution, as the Australian people had no say in what British MPs in Westminster Hall did, and could not elect representatives to Westminster. It was not until the Statute of Westminster Adoption Act 1942 (Cth) that Australia finally gained full legal and formal ownership over its foreign policy. The same law also ended the ability for Australian laws that were inconsistent with British laws to be struck down/invalidated. And it took until the Australia Act 1986 (Cth) for the British Parliament to surrender its power to pass laws over Australia.
The Australian constitutional process has been one of increasing democratisation, with the people of what would become Australia gaining more and more control over Australia’s Federation and the drafting of the Constitution. Certainly, it was much more democratic than Pinochet’s Chilean Constitution. Although there have been obstacles to overcome, notably the Secret Premiers Conference and especially the role of the British Parliament, since at least the Corowa Conference, the people took an active interest in controlling their fate through democratic means.
Stuart Jeffery is a freelance researcher & digital editor for 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.
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Australian Colonies Government Act 1850 (Imp) (also known as the Australian Constitutions Act 1850 (Imp).