Karl Reginald Cramp.

The state and federal constitutions of Australia online

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BERKELOUW BOOKDEALERS SYDNEY




THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES



THE STATE AND FEDERAL
CONSTITUTIONS OF AUSTRALIA




Sir Hkxkv ParkiiS



THE STATE AND FEDERAL
CONSTITUTIONS OF AUSTRALIA



BY
KARL R. CRAMP. M.A.

Examiner, Department of Public Instruction, Sydney ;
Late Senior Lecturer in History, Sydney Teachers' College



WITH AN INTRODUCTION BY PROFESSOR WOOD
University of Sydney



SYDNEY

ANGUS & ROBERTSON LTD.

89 CASTLEREAGH STREET
1913



Printed by

W. C. Feiifold & Co., 183 Pitt Street, Sydney

for

Angus & Robertson Limited

London : The Oxford University Press
Amen Corner, E.C.



Vo//
PREFACE

Living as we do in the age of democracies
with their institutions ever growing and
undergoing modification, ])ut withal rooted in
the past, it seems essential that the schools —
the training ground of our future citizens —
should realise to the full their responsibility to
the society in whose midst they flourish, and
should anticipate the day when their present
scholars will receive the full rights and
obligations of citizenship. This relation of
the school to society has been largely recog-
nised of late years, and school curricula have
been accordingly modified in both the primary
and secondary departments. Not only have the
industrial and commercial requirements of the
community been kept in view, but definite
instruction has been given in subjects of a
more directly civic significance. Lessons in
history and lessons on the public institutions
of our own country have been given largely in
relation to one another. In this way a dynamic
as well as a static view of society is being
developed. A democratic people cannot afiford
to disregard the study of the foundations and
erection of its institutions if it hopes to com-
prehend them in their present form. A
desire to assist towards a more intelligent and



vi - PREFACE

potent citizenship — the outcome of more
thoroughly organised knowledge — leads me to
otter this account of the origins, growth and
present characteristics of Australian political
institutions.

It is not expected that the younger pupils
of our schools should read this book. It
suffices that they are enjoying some form or
other of concrete civic instruction in repro-
ducing public institutions in their own school
and class organisations, and in listening to
stories about Englishmen who struggled and
died in the cause of freedom, and Australians
who worked zealously for the constitutional
emancipation and dignity of their country.
This is an admirable preparation for a more
formal study of constitutional machinery. It
is as a first course in such a formal study that
this work is intended. The youth of the upper
secondary school, about to launch out from the
shelter of the school into the broad open sea
of life, has developed a fund of historical
knowledge sufficient to engender a keen
interest in public institutions and political
questions. Experience leads one to believe
that youths of from sixteen to eighteen years
of age have as intelligent a grasp of such
subjects as the average adult, particularly as
they have the advantage of the guiding hand
of a specially equipped teacher. Probably
too, teachers and more advanced students, as



PREFACE vii

well as the general reader, may find some
attraction and value in the book. But no
attempt is made to meet the requirements of
those whose interest and business it is to
examine with any thoroughness the nature
and details of our federal constitution. This
class of student must have recourse to more
complete and formal treatises such as Quick
and Garran's Annotated Constitution of the
A itstraiian Com ni onzvcalth .

In order to encourage comparative methods
of study and give a more thorough grasp of
the principles underlying our own constitution
and a greater appreciation of the statesman-
ship at work in its drafting, the general
features of other federal constitutions have
been outlined. A study of ancient and
mediaeval federations may serve to emphasise
the greater elaboration and finer workmanship
of modern federal machinery. The appendices
will allow direct reference to original authority
and practically indicate some of the sources
of the historian's information. They may be
passed over by those who desire an uninter-
rupted account of constitutional progress.
Chapter X., though political rather than con-
stitutional, will yet serve to show the con-
stitutional machinery at work, and perhaps give
fuller meaning to the preceding chapters on
Australia.

It gives me much pleasure to acknowledge



viii PREFACE

my great indebtedness to Professor Wood,
M.A., of the University of Sydney, who read
through the manuscript and has honoured my
work by contributing the introductory chapter.
I am also under obligation to Mr. J. D. St.
Clair Maclardy, M.A., Chief Examiner, Depart-
ment of Public Instruction, Mr. W. J. Elliott,
M.A., Inspector of Secondary Schools, and Mr.
A. W. Jose, for their careful perusal of the
manuscript ; to Mr. J. Garlick, Officer-in-charge,
Local Government Department, who read the
section on Local Government ; to Mr. H.
Wright, Curator of the Mitchell Library, who
smoothed my way in the matter of illustrations ;
to Mr. F. Walsh, Parliamentary Librarian, for
help in sundry ways, and especially to my wife,
whose assistance, criticisms and reading of the
proofs have been a material factor in the pro-
duction of this little work.

In conclusion, may I express the hope that the
book will assist towards the development of a
well-informed and intelligent Australian senti-
ment, not antagonistic to, but rather enriching, an
equally well-informed and rational Imperialism.

KARL R. CRAMP.

May, 1913.



CONTENTS



Introduction

Chapter I. Constitutional Development in

New South Wales, 17S8-1842. The

Crown Colony
Appendix to Chapter I. Selected Clauses

FROM the Acts of 1823 and 1828
Chapter II. Constitutional Development in

New South Wales (continued), 1842-

1850. Representative Institutions . .
Appendix to Chapter II. Selected Clauses

FROM the Acts of 1842 and 1850
Chapter III. Constitutional Development in

New South Wales (continued).

Responsible Government
Appendix to Chapter III- Selected Clauses

from the Act of 1855 . .
Chapter IV. The Other Colonies

(a) Victoria . . . . . . 80-85

(b) Queensland . . . . 85-87

(c) South Australia . . . . 88-90

(d) Western Australia . . 91-93

(e) Tasmania . . . . . . 93-97

(f) New Zealand . . . . 97-99
Summary of the State Constitutions . .

Chapter \'. Conditions and Characteristics

OF Federalism
Chapter. Vl. The Federal Movement in

Australia, i 846-1 891



Page

xiii



1-20

21-28

29-41
42-51

52-72

73-77
78-99



100-104

105-121
122-139



X CONTENTS

Page

Chapter VII. The Federal Movement in

Australia (continued), 1891-1901 .. 140-156
Chapter VIII. The Australian Constitution 157- 171

(a) The Executive . . 158-162

(b) The Legislature . . 162-171
Chapter IX. The Australian Constitution

(continued) . . . . . . 172-188

(c) The Division of Powers 172-178

(d) The Judiciary . . 179-183

(e) Constitutional Amend-
ment . . . . 183-185

(f) Relation to the Empire 185-188
Appendix to Chapters VIII. and IX. Selected

Clauses from the Commonwealth of
Australia Constitution Act . . . . 189-206

Chapter X. The Working of the Consti-
tution . . . . . . . . . . 207-226

Chapter XL Ancient and Mediaeval Systems 227-237

Chapter XII. The United States . . . . 238-253

Chapter XIII. The Canadian Dominion . . 254-268

Chapter XIV. European Federations . . 269-288

(a) Switzerland . . 269-279

(b) The German Empire 279-288
General Appendix (i) The South African

Union . . . . . , , . . . 289-296
General Appendix (2) A Tabulated Com-
parison OF THE Federal Constitutions 297-303
Index . . . . . . . . . . . . 305



ILLUSTRATIONS



Page

Sir Henry Parkes . . . . . . . . Frontispiece

Maps of Australia illustrating Alterations

Beti^'een 6 and 7



OF Boundaries



Sir E. Deas Thomson

William Charles Wentworth

The First New South A\'ales ^^Iinistrv

A Political Sketch issued in 1844

Sir Charles Gavan Duffy

Alfred Deakin



Facing



Queen Victoria's Proclamation
Commonwealth

Sir George Houston Reid . .

Sir Edmund Barton

Sir Samuel Griffith

]\Ir. Justice R. E. O'Connor

The First Federal Government



of the



59
59
75
79-
86

86



170
170

186
186
203



AUTHORITIES

Quick & Garran — Annotated Constitution of tlic Australian
Commonwealth.

Garran- — The Coming Commomvealth.

W. Harrison Moore — Tlie Commomvealth of Australia.

Riisden — History of Australia.

Allin — The Early Federation Movement of Australia.

Jenks — A History of the Australasian Colonies.

Teece — A Comparison betiveen the Federal Constitutions of
Canada and Australia.

Sir Henry Parkes — Fifty Years in the Making of
Australian History.

Egerton — Federations and Unions in the British Empire.

Egerton — British Colonial Policy.

Dicey — The Lazv of the Constitution.

Lord Durham — Report on Canada.

Holland — Imperium et Lihertas.

Bryce — The Holy Roman Empire.

Bryce — The American Commonzvealth.

Various Imperial and Australian Statutes.



INTRODUCTION

The political story of Australia is not an
obviously interesting' story. Great things have
happened, but they have happened gradually,
and without observation. There have been no
wars of conquest, for a handful of people were
dowered with a continent ; no wars of defence,
for the continent was protected by the fleet of
Nelson ; no racial conflict, for the people were
as entirely British as the people of the British
Isles. The great battles of freedom had been
already fought and won before Australia came
of age. The principles of Democracy and
Liberty, of Colonial Home Rule and Respon-
sible Government, had been recognised as
essential principles of British civilisation.
Australians had not to fight ; they had only to
ask, and to argue. There were mistakes and
delays and friction ; but in general, Australia
got the full privileges of British citizenship as
soon as Australia was ready to use them with
advantage to herself. Our story has not been
the story of a people striving to be free. It
has been the story of an infant society
gradually growing into the freedom that was
recognised to be its natural birthright.

The interest of a story of this sort does not
lie on the surface. We miss the great battles



xiv INTRODUCTION

for great causes ; the heroisms and the martyr-
doms ; the inspiration of the lives of famous
men. And yet the interest of human things is
in our story of the gradual evolution of a little
British society learning at the ends of the
earth to live the British life in the midst of
unprecedented difificulties. The story begins in
the depths of the Nether AVorld. It is as if a
deliberate experiment was being tried to test
the quality of the British race in the most
unfavourable circumstances that could be in-
vented. We have the careful selection of the
unfit, a society of criminals and the government
of a prison. Then, very gradually, change and
progress begin. Free colonists arrive.
Criminals become emancipists. The first
generation passes and gradually a homogenous
British society is formed. British ideas
find political expression. Despotism becomes
limited and tempered by growing respect
to Public Opinion. Martial Law gives
way to the Jury. The Press becomes free.
The Governor is instructed to act with a
Council of Notables. To these, at a later date,
are added a majority of elected representatives
of the people, and at last a constitution is
established by which the colonists obtained
full rights of self-government.

And meanwhile great things have happened.
The huge unknown cc^ntinent of the South
has been conquered by the explorer and



INTRODUCTION xv

the j)i(>iieer. War has been waged, not with
men but with nature: and no war ever waged
iias made more demand on human courage,
endurance, self-reliance, sagacity. One by one
new colonies have been founded, at points so
far distant that they have been N'irtuall}' islands
in the midst of the sea of bushland, each with
its distinct interests, customs and institutions.

Then these colonies are drawn together.
They are conscious of common origin and
race, of common ideas and institutions, of
common interests and aims. They realise that
they are tiny garrisons holding the immense
frontier of the white world in face of Asia.
They wish to preserve the individuality of each
colony. But they wish to become united for
those purposes which are common to all. Their
statesmen prove of calibre to solve one of the
most difficult and complex problems of prac-
tical politics. And the Federal Constitution
places a nation in possession of a continent.

Such are the outlines of our political story.
We miss in it the fascination of great personal
characters, the romance and excitement of
great personal exploits, the " crowded hour
of glorious life." It is the story, not of Indi-
viduals, but of the Race : the stor}- of the slow,
patient, strenuous, enduring work of genera-
tions of average British men and British
women, intent on doing the next thing, and
on doing it well. No individual stands distinct



xvi INTRODUCTION

and conspicuous above the crowd. But the
result of the long day's work, when we survey
it at the close and as a whole, is one of the
great exploits of the British Race.

In this little book, Mr. Cramp has essayed to
draw the outlines of this story in its constitu-
tional aspect. In a study of this aspect in
isolation, much is of necessity sacrificed : for
the evolution of constitutional machinery is of
little meaning apart from a knowledge of the
men who made the machinery and who used
it. But to one who has, by previous study,
acquired some good knowledge of general
Australian history, there is great interest and
use in a renewed survey of the ground from
the constitutional point of view. To him each
change in institutions will be the expression
of a change in the character and ideals of the
people; and in the story of the making of the
Australian Constitution he will read the story
of the making of the Australian Nation.

G. A. WOOD.



Chapter I.

CONSTITUTIONAL DEVELOPMENT IN
NEW SOUTH WALES.

1788-1842.

The story of the growth of self-government
in the Australian Colonies should be of con-
siderable interest to all present and prospective
citizens of Australia. It affords instances of
the main types of British dependencies from
the Crown Colony governed more or less
completely by the British Government, to the
edult and autonomous State connected with
the Mother Country on terms of almost com-
plete equality. It also affords a valuable study
of the attempts to effect a reconciliation
between the forces signified in the phrase
Imperiuni et Libertas. The problem exercising
the minds of British and colonial statesmen
during the nineteenth century, and still
awaiting its ultimate solution, is how to pre-
serve the Imperial connection (Imperium) and
at the same time give the greatest possible
measure of political freedom (Libertas) to the
colonies. The theory that colonies drop away
from the parent country like ripe fruit from a



2 CONSTITUTIONAL HISTORY OF N.S.W.

tree upon reaching maturity made Imperium
and Libertas appear irreconcilable. On the
whole, however, British statesmen were con-
vinced that such was not the case, and the
completeness of their convictions is reflected
in the large degree of liberty which the Englisli
Parliament has granted to her colonies, within
the last century. " Whilst continuing," said
Lord John Russell, in a despatch referring to
the granting of self-government to the
Australian Colonies in 1855, " to pursue their
present independent course of progress and
prosperity I have the fullest confidence that
they (i.e., the Colonies) \y\\\ combine with it
the jealous maintenance of ties thus cemented
alike by principle and feeling."*

Jn the development of full governmental
powers in the Australian Colonies there are,
The main stages of speaking generally, five main stages. These
development. stand out most clcarlv in the case of New
South Wales. We will therefore examine this
development in tlie mother colony in some
detail, and content ourselves with a more
general survey of the modifications in the Dther
States.

(I.) During the first period, extending from
1788 to 1823, New South Wales was a Crown



* Parliamentary Tapers ISS.S. (/. Durliani, Report on Canada,
pp. 229, 24.^, and Kk'erton Krit. Col. Policy, pp. 4, 300-1; I'iiir infra.
Chapter III. p. .'i4. Contrast the view.s" of another section who
regarded the jjranting of political freedom to the Colonies as a
smoothing of the way to a separation which, in tlieir opinion, was
in any case inevitable.



MAIN STAGES IN THE DEVELOPMENT 3

Colony of the extreme military type. Tt was
under the jurisdiction of a Governor who
exercised practically absolute powers. He was
assisted by naval and military officers.

(II.) From 1823 to 1842 the colony remained
under Crown rule, but this control was relaxed
to the extent of allowing the Governor a
nominated Legislative Council with advisory
powers.

(III.) Between 1842 and 1856 partially
Representative Institutions were established,
and the Legislative Council, which had
previously consisted entirely of nominees, now
had a proportion of its members elected by an
enfranchised section of the community.

(IV.) Since 1856 the people of the colony
have exercised control not onlv over the
Legislature, but also through the Legislature
over the Executive. In other words. Respon-
sible Government has obtained since that year.

(V.) In 1901 New South Wales entered into
a federal union with the other States of
Australia, and a further extension of the
privileges of self-government was granted to
the central authority.

We will now discuss these stages in detail.

The Establishment of the Colonies.

In 1784 the Imperial Parliament passed an New South Wales
Act " for the efifectual transportation of felons



4 CONSTITUTIONAL HISTORY OF N.S.W.

and other ofifenders." The Act authorised the
Privy Council to appoint places for this
purpose, and accordingly two years later New^
South Wales was designated such a place.
New South Wales was defined to include all
Australia east of the 135th meridian of east
longitude, \^an Diemen's Land, and the
adjacent Pacific Islands. The Governor's
Commission did not grant him jurisdiction over
the islands of New Zealand ; but as soon as
British subjects settled there, a more or less
vague understanding arose that, if any author-
ity was to be exercised over the settlers, it
should be exercised by the Governor of New
South Wales. In 1817 he was given juris-
diction which allowed him to interfere when
necessary between the P>ritish settlers and the
Maoris. But it was not till 1840 that New
Zealand became definitely a dependency of
New South Wales, and then for a few months
only. Including New Zealand, the area ruled
over by the Governors of New South Wales
exceeded one and a half million square miles.
The other Colo- 'pj^g wcstcm part of Austialia remained
unannexed for forty years. In 1826 a small
settlement was effected at King George's
Sound. In 1825 the western boundary of New
South Wales was shifted west to the 129th
meridian. Four years later (1829) a settle-
ment was planted on the Swan River, and to
this young colony the control of the King



THE OTHER COLONIES 5

George's Sound settlement was soon trans-
ferred. Van Diemen's Land had by this time
been proclaimed a separate colony (1825).
South Australia was carved out of New South
Wales territory in 1836, which was still further
reduced by the separation of New Zealand in
1841. This left New South Wales with a
peculiar territorial formation. To ascertain
this, draw a map of Australia and divide
it into two parts at the 129th meridian. Then
insert the 132nd meridian from the (]Jreat
Australian Bight till it reaches the 26th parallel,
proceed along this parallel to the 141st
meridian and then turn southwards till the
sea is reached. It will thus be seen that South
Australia was bordered on three sides — east,
north and west — by New South Wales, and
that the latter colony then consisted of what
now constitutes the three eastern States, the
Northery Territory and a slice south of the
26th parallel wedged between South Australia
and \\^estern Australia fi.^., between the 129th
and 132nd meridians). This latter narrow and
unpopulated slice was so far removed from
Sydney, the seat of Government, that it was
generally called " No Man's Land."

By the separation of Victoria in 1851 and
Queensland in 1859, the area of New South
Wales was still further reduced. That part
which now constitutes the State was geo-
graphically cut off from " No Man's Land "



6 CONSTITUTIONAL HISTORY OF N.S.W.

and the Northern Territory, which, however,
still retained their political connection with the
parent colony. Consequently a readjustment
of boundaries was necessary, and between the
years 1861 and 1863 the two latter territories
were transferred to South Australia, and the
western boundary of Queensland was formed
by the 141st meridian as far north as the
26th parallel, and thence by the 138th meridian.
Previously it had been the 141st meridian
throughout.

Since 1863 no new colonies have been
formed, but Papua became a protectorate of
Great Britain in 1884 and a Crown Colony
associated with Queensland in 1888. It was
subsequently handed over to the Common-
wealth Government (1906) which has also
more recently (1911) secured from South
Australia the control of the Northern Territory.
The ])oundary between South Australia and
the Northern Territory runs along- the 26th
parallel of south latitude.

New South Wales — The First Period.
The First Stage— j^ 1788 the colony of New South W'ale-s

The Powers of the , . ■ . , ^

, ^ commenced its existence under Governor

early Liovernors.

Phillip, who had been appointed Governor and
Vice-Admiral. The C,overnment of a State
has to do with the administrative, legislative
and judicial regulation of its public affairs.



Fort Dundas

tfl24 9



S^rtWe^Uugton




VAN DIEMENS LAND . 7J~

Separated from NSW \J*^
5'?Dec 1825



EASTERN AUSTRALIA

Annexed by Cap^ Cook
1770.

Moreton Bay

^^^* .Nortolhl.



Sydney ;!&&

\EW ZEALAND

Annexed b^ Cook
f-tnLaunceston iao4- 1?'^'^

Hobart 1804-
'■Sdoji J803




AUSTRALIA AND NEW ZEALAND, 1786-1836.



ss:^'^'"




Port Curtis 1845



. Norfolk 1.

Annexed to Van DieTtiTOoL^
•tordHowel ^'^'^



Sydney

NEW ZEALAND ^V^

Portland^'— ^\^ DenmieJy actachedaNSW^

iWlLduncesioji ^^S%^^f^SP^
VAN 0IEME\8 LAND \^obart Nfav.mi ^



ounda^ of Nonh Auscraua. 184-6-i



AUSTRALIA AND NEW ZEALAND, 1836-1851.




PertVi



— . _ . Boundary firsc

proposeL- for Viccena along
the Murrumbjdgee



lordHowP "Norfolk I
lorOMOwe Under Oovemor
of NSW 1856
Sydnej'



Melboump



Hobari



AUSTRALIA, 1851-1859.




Perth



-.-. — .— •— Bounaary /"ir^t
proposed Cor Queensla-nd

rUOIlg 30'S

— Boundary of a.

proposed Colony U> tih raJlea
Albert (W6J - 3)



Brisbane

Norfo'lKI.
•Lord Howe I.
Sydney



TASMANIA



AUSTRALIA, 1859-1861.



D^^



Palmerstoi)



WESTERN ;
AUSTRALIA



PAPUA

British Pratectopai/S 18B4
Crcwn Colony associated



with Queensland



Perth



NORTHERN
TERRITORY
Added to^
SouthAust.

1863 «


QUEENSLAND


SOUTH


26-S


2 23"S ^


AUSTRALIA

Ade]aide


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Online LibraryKarl Reginald CrampThe state and federal constitutions of Australia → online text (page 1 of 21)