BRIAN GALLIGANA FEDERAL REPUBLIC Australia’s Constitutional System of Government BRIAN GALLIGAN Department of Political Science University of Melbourne CAMBRIDGE UNIVERSITY PRESSPublished by the Press Syndicate of the University of Cambridge ‘The Pitt Building, Trumpington Street, Cambridge CB2 IRP, UK 40 West 20th Street, New York, NY 100114211, USA Stamford Road, Oakleigh, Melbourne 3166, Australia u © Cambridge University Press 1995, First published 1995, Printed in Hong Kong by Colorcraft National Library of Australia cataloguing:in-publication data Galligan, Brian, 1945-. A federal republic: Australia’s consitutional system of government, Bibliography. Includes index. 1. Australia. Constitution. 2. Federal government - Australia. 3. Republicanism ~ Australia. 4. Australia ~ Politics and government. 5. Australia ~ Constitutional law. 1, Title, (Series: Reshaping, Australian institutions). 320.994 Library of Congress cataloguingein-publication data Galligan, Brian, 1945— A federal republic: Australia’s constitutional system of government / Brian Galligan. p. em, — (Reshaping Australian institutions) Includes bibliographical references (p._) and index. 1. Federal government ~ Australia. 2. Australia ~ Politics a government. I. Title, IL. Series. JQ4020.S8635 1995 320.494-de20 95-9728 A catalogue record for this book is available from the British Library. ISBN 0 521 $7354 9 HardbackContents Tables and figures vi Preface vii Introduction 1_A federal republic 12 2 Federal theory and Australian federalism 38 3 The Senate and responsible government 63 4 Labor and the Australian Constitution 91 5 The referendum process 110 6 The protection of rights 133 7 The High Court and the Constitution 160 8 Intergovernmental relations and new federalism 189 9 Fiscal federalism 214 10. Towards and beyond 2001 239 Bibliography 255 Index 275Tables and figures Tables Results of the referendum of 1899 Constitutional referendums 1901-88, Results for 1988 referendums: Percentage of electors approving proposal 9.1 Fiscal structure of the public sector, 1990-91 9.2 Net Commonwealth payments to State/local government sectors 1990-91 to 1994-95 9.3 Financial assistance grants to the States, 1994-95 9.4 Impact of horizontal fiscal equalisation on the distribution of financial assistance grants and hospital funding grants (1994-95) yor moo Figure 9.1 Specific purpose payments as a percentage of total gross payments to the States 1980-81 to 1994-95 28 119 127 227 230 236 237 229Preface ‘This book reflects my research and thinking on the Australian Consti- tution and federalism since 1984. Since then I have had the privilege of working in the Research School of Social Sciences at the Australian National University, initially in the Political Science Department, where 1 was responsible for the Federalism Project, and more recently in the Federalism Research Centre. Don Aitkin, then head of the department, had flagged federalism as a core issue of Australian politics that had been relatively neglected by Australian political scientists, and in the early 1980s he instituted the Federalism Project to stimulate research. John Warhurst initially ran the project, which entailed facilitating a research network of interested scholars from State universities, pro- ducing a newsletter and running an annual federalism conference in Canberra. I went to Canberra and the Federalism Project from Tasmania in 1984, after John left for the Australian Studies Centre in London, and have been at the ANU for a decade with a large part of my time devoted to federal issues. My constitutional interest goes back two decades to graduate school at the University of Toronto, and in particular to a stroke of good fortune in 1974 at being chosen asa teaching assistant for the joint course taught by Walter Berns and Peter Russell on the Canadian and American constitutions. Both professors attended all classes, and there was a good deal of lively interchange between them and the keen students, many of whom were jostling to get into law school. My enthusiasm for constitu- tional study having been sparked, I took graduate courses with both of these eminent constitutional scholars and chose to do my PhD thesis on the Australian Constitution with Peter Russell as supervisor and Walter Berns as an adviser. In wrapping up this book and writing the preface, I was delighted to have Peter Russell as a visiting fellow in the Federalism viiviii PREFACE Research Centre and to use his recent book, Constitutional Odyssey: Can Canadians Become a Sovereign People? (Toronto: University of Toronto Press, 2nd ed., 1993), to sharpen my central argument that the Aus- tralian people, in contrast to the Canadians, did constitute themselves as a sovereign people in adopting the Australian Constitution in 1901. This book champions federalism and the Constitution against an Australian tradition of opposition and neglect. It supports the counter tradition, now becoming dominant, of taking federalism seriously of which S, Rufus Davis has been a leading advocate over a professional lifetime, continuing with his Theory and Reality: Federal Issues in Australia, England and Europe (St Lucia: University of Queensland Press, 1995). The book challenges the orthodoxy that assumes and defends parlia- mentary and party responsible government as the dominant and preferred parts of the Australian political system. It establishes that the Australian people are sovereign and have constituted themselves in a federal polity under a constitution that controls all the other institu- tions of government, including parliaments and executives with their monarchic forms and responsible government practices. For this reason Australia is properly a federal republic rather than a parlia- mentary democracy: the people rule through a constitution that is the basic law of the regime and incorporates the checks and balances of such a constitutional system with a federal division of governments and powers concerned with political ideas and issues of institutional ign rather than practical politics and policy processes. It focuses mainly on the constitutional aspects of federalism, on key parts of the constitutional system such as the Senate and referendums, on issues of institutional design such as combining responsible government with a federal Senate or protecting rights through the division of powers and checks and balances, and on areas of tensions such as between the Labor Party and the Constitution. The coverage is selective — for example, there is a chapter on the Labor Party but not one on the Liberal or National parties. The reason for concentrating on the Labor Party is that Labor has been the main political opponent of federalism and the Constitution since federation whereas the conservative parties have been supportive of the status quo. Where subconstitutional topics such as intergovernmental relations and fiscal arrangements are considered, as in chapters 8 and 9, there is a strong emphasis on the constitutional provisions that broadly shape such areas. always had in mind to write a book on federalism while I was at ANU, but my role as coordinator of, and partici joint federalism pro- jects and conferences favoured shorter pieces on particular topics. Hence this book is something of a synthesis and has been long in thePREFACE ix making. Various chapters draw heavily on collaborative work with col- leagues and on earlier papers and articles of my own. Ihave developed my own ideas and absorbed those of my co-authors in writing a number of joint papers, which I have used in this book. Chapter 3 draws in part on a joint article with John Uhr, a friend and colleague at ANU, ‘Australian federal democracy and the Senate’, Public Law Review 1(4), 1990: 309-28. Chapter 4 draws extensively on a joint article with David Mardiste, then a research assistant at the centre, “Labor's reconciliation with federalism’, Australian Journal of Political Science 27(1), 1992: 71-86. Chapter 9 draws partly on a joint article with Cliff Walsh, ‘Australian federalism: Developments and prospects’, Publius: The Journal of Federalism 20(4), 1990: 1-17. My thinking on the compatibility of federalism and increasing globalisation in chapter 10 was developed in writing several joint papers on federalism and the environment Georgina Lynch who worked at the centre on a number of occasions during her law studies. I would like to thank all my co-authors and colleagues who have assisted and stimulated my study of federalism and the Constitution. Other parts of the book draw on my own published papers: chapter | on ‘Regularising the Australian republic’, Australian Journal of Political Science, Special Issue, 28, 1992: 56-66; chapter 5 on ‘The 1988 refer- endums and Australia’s record on constitutional change’, Parliamentary Affairs 43, 1990: 497-506; chapter 6 on ‘Parliamentary responsible government and the protection of rights’, Public Law Review 4(2), 1993: 100-12; chapter 8 on ‘Australian federalism: The challenge of governing in the 1990s’, in Governing in the 1990s: An Agenda for the Decade, ed. 1. Marsh, Melbourne: Longman Cheshire, 1993: 288-312; and chapter 9 on ‘Federalism and policymaking’, in Policymaking in Volatile Times, eds A. Hede and S. Prasser, Sydney: Hale & Iremonger, 1993: 175-92. As well, I have used unpublished papers presented at seminars and conferences. Chapter 8 draws on papers on ‘Concurrent versus coordi- nate federalism’ presented at the centre's Research Advisory Committee seminar and ‘The character of Australian federalism: Concurrent not ate’ presented at the Australasian Political Studies Conference, both in 1991; while chapter 9 uses a paper, ‘Ideas about Australian federalism: Misconceptions and consequences’ presented at the centre's New Federalism workshop in 1992. Chapters 2, 3, 4 and 7 develop themes from earlier work concerning federalism and its Australian critics, Labor's opposition to federalism and the role of the High Court. These remain core issues for any study of the Australian Constitution and federalism. The draft manuscript has been read in whole or in part by a number of friends and colleagues who have made helpful suggestions andx PREFACE helped me to refine and correct a number of significant points. I would like to thank in particular John Nethercote for his superb editorial assistance, Peter Russell and Rufus Davis who read the entire manu- script, and Paul Finn, Philip Pettit and John Warhurst who read parts. Finally I would like to acknowledge the continuing assistance of Stephanie Hancock, Robyn Savory and Linda Gosnell for their patient secretarial assistance in preparing various drafts of papers and the manuscript. Their congenial fellowship and competence made the centre a delightful place in which to work and write. I would like to acknowledge the stimulation of colleagues at the Federalism Research Centre: Cliff Walsh who was director until 1993 and Christine Fletcher who was a research fellow. In addition, the centre established an extensive network of scholars from other Australian and overseas universities who were regular visitors to the centre or partici- pants in its activities. My own work and that of the centre benefited enormously from being located in the ANU's Research School of Social Sciences and from participating in the school's centenary project, Reshaping Australian Institutions (2001). Geoffrey Brennan, director of the Research School, and John Braithwaite, coordinator of the Reshap- ing project, have given a major fillip to the study of Australian institu- tions through this centenary initiative. This book straddles two strands of the Reshaping Australian Institu- tions (2001) project: the constitutional system and intergovernmental relations streams, of which I have been coordinator. The book's purpose to establish the basic character of Australia’s Constitution so that discussion of its possible reshaping is properly grounded. Too often in the past, and continuing in the current republican debate, those pro- posing change or defending the status quo have been surprisingly ignorant of the constitutional system that is in place. Summing up Australia’s constitutional system of government as ‘a federal republic’ is not meant to take one side and provoke the other in the current debate on republicanism versus monarchy. That debate neglects the substantial fact that Australia is already a federal repu The book explains the deeper constitutional reality that needs to be appreciated before proposals for its reshaping are put forward. There are changes to the Australian constitutional system that might well be made and which I would support; some of these, including formally republicanising the office of head of state, are canvassed in the last chapter of the book. The main problems facing Australia today are not of a constitutional nature requiring constitutional change, however, but concern national policy for a more competitive and open economy while ensuring social justice for all Australians, The institutional reshap- ing necessary is chiefly at the subconstitutional level: streamliningIntroduction My purpose in this book is to change the way Australians think about their constitutional system of government. Baldly stated, the argument is that Australia has a constitutional system that is fundamentally federal and republican rather than parliamentary and monarchic. That is not to deny the parliamentary and monarchic elements, but to put them in proper institutional perspective as subsidiary parts of the larger consti- tutional system. This larger constitutional system is controlled by the Australian Constitution, which is essentially federal and republican. In being federal the Constitution sets up two spheres of government, Commonwealth and State, and divides powers between them. Clearly, as the legislative branches of such governments, which are controlled by the basic law of the Constitution, parliaments in the Australian system cannot be sovereign or supreme in a Westminster sense. The Australian Constitution is republican because it is entirely the instrument of the Australian people who are sovereign. The monarchic forms of Queen and vice-regal surrogates remain as the formal parts of the executives for both the Australian and State constitutions but are entirely subject to the will of the people, as are the legislatures or parliaments. Hence, in sub- stance and effect, the Australian constitutional system is truly republican because the people are sovereign and all the institutions of government are subject to the rule of the Constitution with its checks and balances. Those who do not recognise this to be the case, including many lawyers until recently, would point to the fact that the Australian Consti- tution was passed by the British parliament at Westminster and owes its status and legitimacy to that source. Such a position fails to distinguish the real from the formal source of legitimacy. The Australian people were politically sovereign as the determining political force and morally sovereign as the legitimate source of power. Passage by Westminster wasINTRODUCTION 3 countries. At Australia’s instigation, the 1930 Imperial Conference agreed that the King would appoint a governor-general on the advice of a dominion government even if he were personally opposed to the appoinument, as George V had been to the appointment of Sir Isaac Isaacs as the first Australian governorgeneral in 1930. And it was not until the Australia Acts in 1986 that the role of the British Government was finally eliminated in the appointment of State governors, although it had long since become a formality. To a limited extent, the continuation of these British links might be seen to derogate from full and complete sovereignty of the Australian people in 1901. The important point is that this is what the Australian people chose because it suited their sentiment and interest. In somewhat similar fashion today, nation-states like Great Britain can voluntarily give up quite large parts of their sovereignty in order to achieve the benefits of membership in the European Union (MacCormick 1993). Australia can become party to various defence and trading agreements, for example, an Asia Pacific Economie Community if APEC becomes more than the cooperative association it currently is (Cooper, Higgott & Nossal 1993), or if Australia entered into closer political relations with New Zealand some national sovereignty in both countries would be sacrificed (Galligan & Mulgan 1994). The key point for the argument advanced here is that sovereignty does not necessarily entail creating a wholly autonomous national system but in being able to choose either that or something lesser with arrangements that compromise, to an extent, pure national sovereignty. Despite the continuation of links with Britain, the Australian people's assertion of sovereignty in establishing their federal consti sharp contrast to that of the Canadians three decades earlier. The British North America Act of 1867, as Canada’s Constitution was called until recently, was drafted by political elites who quite deliberately excluded the people. Canada’s colonial leaders rejected ‘the heretical idea that a constitution should be derived from the people’, opting instead for elite accommodation and imperial legislation that fitted their Burkean and strongly British sentiments. Canada ‘continued to lean on the legal crutch of imperial sovereignty’, as Peter Russell so aptly puts it, until finally patriating its constitution in 1982 because there was never sufficient consensus on an amending formula (Russell 1993a: 3, 58). It was only in voting down the cumbersome Charlottetown Accord in October 1992 that the Canadian people finally got to exercise directly their sovereignty as a people. The Australian Constitution was quite different from that of Canada, as Secretary of State for the Colonies Joseph Chamberlain noted in introducing the Commonwealth Bill into the British House of Commons in May 1900, because it ‘had been4 INTRODUCTION prepared by the Australian people’, albeit with some slight meddling by Chamberlain at the last minute (Quick & Garran 1901: 243). Because of its republican argument, this book might not be congenial to modern-day monarchists or republicans since it undercuts their often passionate debate and the claims that both sides make. If Australia is already in substance a republic, monarchists are overstating the signifi- cance of the monarchy in the present order and the consequences of regularising the republic by eliminating monarchic forms altogether (Atkinson 1993). ewise, Australian republicans make similar exag- gerated claims in order to fire up themselves and the public to make what is in fact a relatively small but technically difficult change to the constitutional system (Turnbull 1993). As the current governor-general, Bill Hayden, pointed out in a 1993 interview, the ‘minimalist’ proposal of changing to a republican head of state by substituting ‘president’ for all references to the Queen or governor-general in the Constitution makes very lite difference to any of the problems associated with the reserve powers of the office or indeed any of the major issues facing Australia today. It is also worth keeping in mind that eighteenth-century republican theorists did not see constitutional monarchy as incompatible with genuine republicanism (Pettit 1993a & b; 1994). Indeed, in his great classic work on republican government published in 1748, Baron de Montesquicu thought that the executive power ought to be in the hands of a monarch provided the monarch did not have legislative power and was subject to the laws of the land. He praised the English Constitution for approximating his republican ideal of the separation of powers, the rule of law and, most crucially of all, protection of the political liberty of the subject in safety and tranquillity of mind ({1748], 1949, Book XI, 6, ‘On the Constitution of England’: 151, 156, 162). It was not until the American founders broke sharply with monarchism in framing the United States Constitution in 1789, after a bloody war of independence with Britain, that monarchism came to be considered antithetical to republicanism. Classic republican thought reinforces the point that the current Australian debate is between Tweedledum and Tweedledee. Because of its federal argument, this book will antagonise many who still believe in the abolition or attenuation of the States. Until the 1970s, culminating in the big-spending programs of the Whitlam Government, this was the dominant view of most progressives and reformers. Founded in the federation decade, the Labor Party was pledged to the abolition of federalism in principle and, in practice, although not regularly in federal office, preferred centralist policies such as uniform taxation introduced as a war measure by Treasurer Chifley in 1942 and extended postwar as Labor's preferred fiscal policy. While Labor became formallyINTRODUCTION 5 reconciled with federalism in recent decades, and Labor Prime Ministers Whitlam, Hawke and now Keating have adopted ‘New Federalism’ agendas to make federalism work better, there remains a residual prefer- ence for centralism among federal Labor members and their supporters. This is only partly offset by the strong State organisational base of the party and articulate Labor premiers like Queensland's Wayne Goss. Because of its primary constitutional focus, this book is at odds with the orientation of much Australian political science, which has ignored the Constitution or left its study to constitutional lawyers. Surprising as it might seem in a polity that is so fundamentally constitutional, few Aus- walian political scientists have had a serious interest in constitutional scholarship. The ‘conventional wisdom of Australian political culture and of Australian political science’ that has featured as the textbook paradigm is ‘party responsible government’, as Andrew Parkin has pointed out (1980). Political scientists have focused on where the politi- cal action is, or appears to be, and concentrated attention at the party= executive nexus. This has proved a powerful analytic perspective because it encompasses the main institutions of day-to-day politics: disciplined parties, which have dominated Australian politics since 1910 and rein- forced a Westminster-style adversarial model, a dominant executive supported by a burgeoning bureaucracy, which has been prominent in the postwar era of big government, and prime ministerial leadership, vhich has come to dominate both party and parliamentary politics. The study of these institutions of political action meshed nicely with the legitimating model of parliamentary responsible government that neatly linked executive government through parliament to the people. The executive was supposed to be accountable to parliament through having to maintain its daily confidence, while parliament was in turn accountable to the people through elections. If the exciting action was to be found with parties and the executive, parliament and elections added democratic legitimation. In addition, political science could show s critical skills by exposing the shortcomings in the legitimating model of democratic accountability and substituting pluralist models of interest group interaction. ‘There was litde room in this dominant political science perspective of party and parliamentary responsible government for either the Con- stitution or federalism. These severely constrain parliaments and execu- tives in practice; they complicate the study of Australian government and politics enormously; and they require entirely different explanatory and legitimating theories. Hence, despite their significance, the complica- tions of a federal constitution were largely ignored or wished away or, if seriously engaged, attacked as obsolete and inefficient. Australian politi- cal science was largely a postwar development, and postwar political6 INTRODUCTION science preferred the study of political sociology and behaviour, focusing on class, interest groups and individual voters rather than institutions and constitutions. As Don Aitkin noted in surveying Australian political science, ‘there not been much interest in fundamental constitution- making, Parliament, the federal system, legal institutions and the like: these are assumed to be given, or taken to be the province of lawyers’ (1984: 8-9). Moreover, political scientists who studied Australia tended to be Keynesian and progressive by temperament, so they studied Canberra and the Commonwealth Government as the source of national eco- nomic and socially progressive policies. To the extent that a unifying symbol was required, it was at hand in the monarchy, which, because of its essentially English character, reinforced the Westminster mindset of Australian political science. For these sorts of reasons, assumptions and prejudices, Westminster concepts and their variations could be taken for granted by Australian political scientists and the basic Constitution, along with its leading federal and republican attributes, ignored. In focusing as they did, political scientists were adopting and, through their writings, reinforcing the orthodoxies of informed public opinion. The Westminster heritage dominated Australian political culture and was taken for granted as the operational and legitimating nub of Aus- tralian government by such leading establishment figures as Sir Owen Dixon and Sir Robert Menzies, arguably Australia’s greatest chief justice and prime minister. In their opinions and writings and in lectures to American audiences in the 1940s and 1960s these two men championed parliamentary responsible government as the crux of the Australian system. Dixon and Menzies were both strong constitutionalists and federalists who had opposed the more centralist aspects of Labor's post- war Chifley Government, but in their expositions of the Australi constitutional system each gave primacy to parliamentary responsible government over federal constitutionalism (Dixon [1944] 1965; Menzies 1967). This was a reversal of the order of significance for Australi system of government and at odds with the founding conventions. When the Australian constitutional framers combined responsible government with federalism they were fully aware of the hybrid inst tional system they were creating. Some, like John Winthrop Hackett from Western Australia, warned that such an unworkable contradiction would lead to responsible government killing federalism or, as he pre- ferred, federalism killing responsible government. Most, however, were more sanguine, preferring parliamentary responsible government with which they were familiar as colonial politicians and to which they were committed as admirers of the English constitution. But there was even greater consensus on the need for a federal constitution that would Ue10 INTROD| 1ON governing themselves by a federal constitution but discoursing mainly about its parliamentary and party responsible government parts. This book changes the balance by focusing on the former as primary and treating the latter as supplementary parts of Australia’s system of government. In the constitutional centenary decade when there is much talk about reshaping Australian institutions, and particularly the Constitution, it is necessary to establish the precise nature of the Constitution and how its main parts were designed and have developed. Some of the key institutions of Australian politics that have constitutional bases and which are discussed in particular chapters of the book can be mentioned briefly to illustrate the point that the institutional parts of Australian government need to be considered in their constitutional context. It would be unwise to propose changes to the powers of the Senate, for instance, if we did not appreciate its true character as a coequal house of the Commonwealth legislature and how it was designed to work with responsible government. This is explained in chapter 3. In evalu- ating how individual rights are protected in Australia and whether Australia should adopta bill of rights, one needs to appreciate the extent to which existing institutional checks and balances do the job, as discussed in chapter 6. How the High Court and its law-making role, which has become publicly contentious because of such recent decisions as Mabo (1992) and the Political Advertising case (1992), fit into a federal republic is treated in chapter 7. There it is argued that it is not the High Court that has run amuck but that its critics have failed to understand the court's constitutional role as the judicial branch of government. At the subconstitutional level, proposals for reshaping intergovernmental relations and fiscal federalism, both major current agenda items, need to take account of the concurrent structure of the division of powers, including most tax powers, between the Commonwealth and the States. These topics are discussed in chapters 8 and 9 respectively. Finally, there needs to some justification for using the term republic rather than democracy. Republic has not been part of mainstream Aus- tralian discourse, and now it is highly contentious in the debate between monarchists and republicans. Moreover, it is one of the oldest terms in political analysis and has had a diverse range of usages in ancient and early modern times, including mixed regimes and oligarchies, which would not be suitable for Australia or at all congenial to Australians. The core modern meaning, however, is rule not by a monarch in his or her ‘own right but by the people through a constitution that controls all the parts of government. The purpose of republican government remains the ideal set out by Montesquieu: achieving the liberty of the citizens understood in the positive sense of their enjoying tranquillity of mindINTRODUCTION AL through being confident in their security from all others including government and its officials, Democracy means simply rule by the people, and often in the Australian context it is understood as simple majoritarianism epitomised by parliamentary sovereignty in a unitary state, Hence, it seemed appropriate to use the venerable word republicin its modern democratic sense to highlight the tue character of the Australian Constitution.CHAPTER 1 A federal republic The central argument of this book is that Australia’s constitutional system is essentially that of a federal republic rather than a parlia- mentary monarchy. Since the Constitution obviously includes both parliamentary and monarchic parts, it is necessary to provide an explanation of federal republic that incorporates these features. It is precisely because the parliamentary and monarchic parts are so obvious that they can be mistaken as the defining features of the Constitution. In addition, there is a strong tradition in Australian political thought that prefers unitary government and the supremacy of parliament. In practical politics this position has been championed by the Australian Labor Party, which for most of the century has been pledged to the abolition of federalism and its replacement by strong centralised government with the States reduced to regional administrative agencies. Australian parliaments, however, are not sovereign law-makers in the classic Westminster sense. They have limited powers under the Constitu- tion. This is a direct consequence of federalism, which entails two levels of government, Commonwealth and State, of which parliaments are integral parts. In other words, parliaments in the Australian system are the legislative branches of governments that are themselves parts of the larger federal structure with powers allocated by the Constitution, The character of Australian parliaments has been widely misunderstood because of over-ready assumption that they are essentially imitations of the Westminster parliament. For example, the Constitutional Centenary Foundation in a discussion paper, The Role of Parliament in Australian Democracy (1993), perpetuates the myth that ‘PARLIAMENT IS SUPREME [sic] Australia has broadly accepted from Britain the notion of parliamentary supremacy or, in other words, the ultimate authority of Parliament’ (Constitutional Centenary Foundation 1993: 11). Even the 12A FEDERAL REPUBLIC 13 rider that ‘in Australia the doctrine is qualified by the overriding authority of Constitutions’ is erroneous because parliaments are not in any sense supreme. Queensland's Electoral and Administrative Review Commission (EARC) takes a different view regarding the States: that they have an older colonial constitutional tradition derived more directly from the English system and embodying in part parliamentary sovereignty. This would make the States something of a half-way house between the Aus tralian or US constitutions, where the law of the constitution is supreme, and the English constitution, where parliament is sovereign. In the Australian States, however, the situation is more complex. As a result of their original status as colonies they have ended up with a hybrid of pure parliamentary sovereignty and the notion of a binding constitution. (p. 28, 2.80) {T]he Constitution of the Commonwealth of Australia is an example of a supra-legal Constitution: something that limits government power and is not capable of amendment by Parliament. However, the colonies, which became States, are older than the Commonwealth and their constitutional principles were more affected by the circumstances of colonisation by Britain. The $ consequently operate under a hybrid of the pure English p sovereignty model and one where the Constitution may be amended only by special procedures. (p. 23, 3.6) EARC does acknowledge that the ‘Commonwealth Constitution meant that the former colonies were no longer completely “sovereign” - there were limitations on their powers as well as those of the Commonwealth which would be determined by the High Court established under the Commonwealth Constitution’ (p. 23, 3.11). Whether EARC’s account of the hybrid status of State constitutions makes sense depends on the meta-institutional question of what hap- pened to colonial constitutions at federation. One alternative is that they continued but with their sovereign domain limited jurisdictionally by the overarching Commonwealth Constitution. So, to the extent that colonial parliaments could have been said to have been sovereign before feder- ation, they remained sovereign in the same way but now in areas defined, albeit residually, by the Commonwealth Constitution (Sections 106 and 107). ‘The other alternative is that federation changed colonial constitutions into quite different sorts of instruments by transforming sovereign colonies with sovereign parliaments into non-sovereign States within the federation. By definition, States within a federation such as the Australian cannot be sovereign, so it makes no sense to say that their parliaments are still sovereign or partly sovereign. So what EARC isA FEDERAL REPUBLIC 7 In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will ... Liberty is a right of doing whatever the laws permit. (Bk xi, §3, 150) Political liberty was not just an abstract public right but entailed the tranquillity of mind that comes from having confidence that one’s safety is assured. In Montesquieu’s noble conception, The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of nother. (Bk XI, $6, 151) Such political liberty was possible only under moderate government, Montesquieu argued, and moderate government required the division of legislative, executive and judicial powers into separate branches of government. Such a scheme was necessary to safeguard against the abuse of power. The concentration of all power in any one individual or group was a recipe for despotism or arbitrary government and posed an abiding threat to the liberty and security of the citizen. Montesquieu observed that in the Italian republics where the three powers were united, there was less liberty than in the European monarchies of the time. In those republics the same body of magistrates made the laws, executed them and exercised judicial power; the consequences were that they could ‘plunder the state by their general determinations’ and ‘every citizen may be ruined by their particular decision’ (152). The key to genuine republican government was not getting rid of the monarch but ensuring the separation of powers and the rule of law. “The executive power ought to be in the hands of a monarch’, Montesquie said, ‘because this branch of government, having need of dispatch, is better administered by one than by many’ (156). Provided the executive power were separate from the legislative power and the executive subject to the rule of law, a monarch was quite compatible with republicanism. Indeed Montesquieu thought that the English constitution of his day best approximated the republican ideal, but of course Montesquieu, along with most ancient and early modern republicans, was not a democrat. Modern republicanism Monarchism was exorcised from republicanism by the American consti- tutional revolution four decades later, and through the nineteenth and carly twentieth centuries republicanism was thoroughly democratised. This is reflected in the current Oxford Dictionary definition of republic:14 A FEDERAL REPUBLIC referring to is not ‘pure English parliamentary sovereignty’ in any meaningful sense at all but rather two models of State constitutions, one where the State constitution is simply a statute of parliament and the other where there are special procedures for amendment. Which of these alternatives is preferable depends on how federation is understood; either as a legal compact to establish a national tier of government for limited purposes while retaining the colonies as States and deriving its legitimacy from Westminster, or as the sovereign people of the colonies constituting a federal system of national and State govern- ments. The argument of this book is that Australian federation entailed the latter transformative act of a sovereign people. In this constitu- tionalising act the people of the colonies reconstituted themselves as a federal polity, creating themselves a national people while preserving their State communities. They established a new national government with limited powers and at the same time made colonial governments integral parts of the new federal system. Consequently, there can be no doubt that the people are sovereign over both the new Commonwealth Constitution and the old colonial constitutions, which were funda- mentally changed by being incorporated in, and limited by, the new order. Through electing delegates to the federation convention that drafted the Constitution and voting to approve the draft, their people asserted sovereignty with respect to both Commonwealth and State con- stitutions. The consequence was that no subsidiary part of the system such as a State constitution or a State parliament can be said to be sover- eign in the sense of the ‘pure English parliamentary sovereignty model’. So it is better not to confuse things and appear to boost the status of State parliaments by talking about them as sovereign or partly sovereign. The Australian system is republican because the constitutions, for both the Commonwealth and the States, are the instruments of the Australian people who have supreme authority. The monarchic element persists in formal ways within both legislatures and executives. The Queen is said to be part of the legislature along with the two houses of parliament (except in the case of Queensland, which has a single chamber), but invariably the monarch’s surrogates, the governor- general and State governors, act on the advice of their elected ministers in assenting to legislation. More significantly, the executive sections of Australian constitutions are cast in the formal language of monarchic rule with the vice-regal surrogates enjoying virtually absolute power according to the written texts. But the real executive consists of Cabinet, which operates according to the conventions of responsible govern- ment, so in effect the elected representatives of the people or officers appointed by them exercise full legislative and executive power within the constitutional framework set by the people.18 A FEDERAL REPUBLIC A state in which the supreme power rests in the people and their elected representatives or officers, as opposed to one governed by a king or similar ruler; a Commonwealth. The term has also been used more broadly to refer to ‘the state’ or ‘common weal’ by political writers like Thomas Hobbes, and meta- phorically by others in speaking of communities of persons or animals where there is a certain equality among the members as in ‘a republic of letters’ or ‘a republic of wasps’. But the plain, ordinary, technical and precise meaning of repudlicin the English language is a state in which the people and their elected representatives rather than a monarch have supreme political power. This is affirmed by the Macquarie Dictionary, preferred by the Republic Advisory Committee, which defines republic as ‘a state in which the supreme power rests in the body of citizens entitled to vote and is exercised by representatives chosen directly or indirectly by them’. The Republic Advisory Committee acknowledges that Australia is a state in which sovereignty resides in its people, and in which all public offices, except that at the very apex of the system, are filled by persons deriving authority directly or indirectly from the people. Because of this deviation with respect to the head of state, coupled with a subsidiary Macquarie meaning of repudlicas a state ‘in which the head of government is an elected president, not a hereditary monarch’, the Republic Advisory Committee concludes that Australia is a ‘crowned republic’ (Republic Advisory Committee 1993: 39). A variation of these definitions is offered by George Winterton who has played a leading role in explaining and promoting the formal transition from monarchy to republic (Winterton 1986). According to Winterton, A republic is a state based upon popular sovereignty, in which all public offices are held by persons deriving their authority from the people, either through election by the people or appointment by officers themselves elected by the people. (1994: 39) This definition is crafted to exclude the Queen who obviously is not elected or appointed by officers elected by the people. But this is only a formal vestige of real monarchy, which owes its continuation and highly constrained legitimacy to the will of the people. The key issue is where supreme power or final political authority lies: with the people and their elected representatives or with a monarch. But what if the people and their elected representatives in drafting aA FEDERAL REPUBLIC 19 constitution and in the continuing business of governing also opt to retain the symbols and formal office of monarch? We would simply say that such a regime is in substance a republic but partly in form a monarchy or, more simply, a disguised republic. In other words, the litmus test is the location of supreme power, not forms and symbols. A polity in which supreme power derives from the people and is exercised by their elected representatives rather than a monarch is a real republic with monarchic trappings. This seemingly obvious point was brilliantly made more than a century ago by Walter Bagehot in explaining the English constitution and the role of the monarchy. Bagehot’s disguised republic In his classic treatise on the English constitution in 1867 Bagehot ex- plained how the symbols of monarchy had been preserved while the substance of executive government had been republicanised through the practices of cabinet responsible government. The former, being simple yet venerable, appealed to popular sentiment and provided an effective disguise for the latter complex system of government, Accord- ing to R.H.S. Crossman writing almost a hundred years later, Bageho count of the English constitution was essentially that of a ‘disguised republic’ (Crossman 1963: 16). The political purpose of such disguise was shrewdly articulated by Bagchot: [W]e have whole classes unable to comprehend the idea of a constitution ~ unable to feel the least attachment to impersonal laws. Most do indeed vaguely know that there are some other institutions besides the Queen, and some rules by which she governs. But a vast number like their minds to dwell more upon her than upon anything else, and therefore she is inestimable. A has only difficult ideas in government; a Constitutional Monarchy has an easy idea too; it has a comprehensible element for the vacant many, as well as complex laws and notions for the inquiring few ... ‘To state the matter shortly, royalty is a government in which the attention of the nation is concentrated on one person doing interesting actions. A Republic is a government in which that attention is divided between many, who are all doing uninteresting actions, Accordingly, so long as the human heart is strong and the human reason weak, royalty will be strong because it appeals to diffused feeling, and Republics weak because they appeal to the understanding, (1963: 85, 86) Asis evident from this passage, Bagehot had a bleak view of the political sophistication and constitutional sense of the English public in the mid nineteenth century. He thought that extension of the franchise was adding a class of people who could only function as subjects and so needed the person and trappings of monarchy to amuse and distract20 AFI DERAL REPUBLIC them from the serious business of government. The genius of the h system was that it preserved those simple and emotive symbols with a royal person and family as popular focus. Bagehot argued that use of the Queen, in a dignified capacity, was ‘incalculable’ because without her ‘the present English Government would fail and pass away’. Bagehot’s purpose was to show how the trivial activities of the royals, such as the Queen walking on the slopes of Windsor or the Prince of Wales going to the races ~ ‘the actions of a retired widow and an unem- ployed youth’ (1963: 82) - were politically significant. His thesis was that these monarchic wrappings disguised and legitimated an effective and complex republican system of government. According to Bagehot, the monarch’s real power had largely lapsed, even to the extent of having to ‘sign her own death warrant if the two houses unanimously send it up to her’ (1963: 98). A constitutional monarch had three rights: ‘the right to be consulted, the right to en- courage, the right to warn’, he concluded, and “a king of great sense and sagacity would want no others’ (1963: 111). Effective government was concentrated in the close nexus between cabinet and parliament, which the monarchy largely disguised from popular, and even in- formed, opinion. Bagehot made no bones about the banality of popular sentiment that featured prominently in his four reasons for the strength of the English monarchy. The first was having a family on the throne, which brought the pride of sovereignty down to the level of ‘petty life’ and childish enthusiasm for such events as royal marriages. For Bagehot, a royal family sweetens polities by the seasonable addition of nice and pretty events. It introduces irrelevant facts which speak into the business of government, but they are facts which speak to ‘men’s bosums’ and employ their thoughts. (1963: 86) cond, the monarch bolstered government with the strength of reli- gion because the monarch enjoyed a certain sense of mystery. Third, as head of state the monarch added a sense of theatre and pageantry. Fourth, and most dubious even for Bagehot the realist, was popular regard for the monarch as ‘the head of our morality’. Queen Victoria was much admired asa virtuous sovereign, but not George I, nor George II, nor William IV, and George IV was ‘a model of family demerit’ (1963: 96). For the hard-headed political analyst, however, the supreme function of constitutional royalty was that of disguising complex, efficient and rational government: It acts as a disguise. It enables our real rulers to change without heedless people knowing it. The masses of Englishmen are not fit for an electiveA FEDERAL REPUBLIC 21 government; if they knew how near they were to it, they would be surprised, and almost tremble. (1963: 97) The political significance of monarchy for legitimising the disguised republic and satisfying the simple emotions of ignorant people was always considerably less in Australia, especially in the twentieth century. In a very real sense the British monarch was far away so that Australians always looked to their own governments. Nevertheless, until recent times the royal family did add ‘nice and pretty events’ to public life and leaven democratic government with some more dignified theatre and pageantry. As the following sections show, however, the Australian republic has always been more overt than that of Bagehot’s England and its dignified parts progressively more republicanised. Australia’s not so well disguised republic Australia’s system of government is in formal terms a constitutional monarchy but in efficient terms a federal republic. As formal documents such as the Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia put it (1984), Elizabeth II is "by the Grace of God Queen of Australia’. Since she is an absentee monarch, however, the head of state functions for Australia’s Commonwealth and State Governments are performed by the governorgeneral and State governors. These officers are formally substitutes for the sovereign in that they are representatives of the Queen and are formally appointed by her. The monarchic element retains some symbolic significance for a minority of Australians, and the monarchic trappings of language and ritual can be seen to lend dignity to the offices of governor-general and governor, While retaining monarchic forms, however, these offices have become Australianised as heads of state in an autonomous federal system, a process that was only completed for the States with the passing of the Australia Act in 1986. The genius of the English constitution, as Bagehot pointed out, that it allowed for the evolution of the efficient part of the constitution, cabinet government, while retaining the dignified form of monarchy that satisfied popular sentiment. The genius of constitutional monarchy demonstrated by Australian experience has been the robust adaptability of dignified as well as efficient parts. The substitution of Australian con- stitutional formulations, procedures and office holders has occurred while the form and language of English monarchy have been retained. In other words, the dignified as well as the efficient parts of the English model have evolved to suit the changing taste of Australian popular senuiment.24 A FEDERAL REPUBLIC constituted themselves politically as a nation and structured their gov- ernment in an claborate federal system by means of the Commonwealth Constitution over which they have supreme authority. Third, the formal monarchic residual - the Queen and surrogate heads of state - is incorporated within the Constitution and its continuation subject to the will of the people. This last point was affirmed when Prime Minister Keating expressed his preference for republicanising the head of state to the Queen at Balmoral Castle in September 1993. She replied that she would accept the decision of the Australian people and the advice of their government on the matter (Australian, 20 September 1993). As discussed at the beginning of this section, Australia has departed significantly from Bagehot’s model of formal monarchism in which a dignified monarch and a popular royal family legitimated republican government. Australia has retained the formal trappings of monarchy while republicanising, to an extent, the symbolic character of the heads of state, the governor-general and State governors. Bagehot's legitima- tion process has been reversed with the shell of monarchic forms being retained while their symbolic substance has been republicanised. More- over, recent media coverage of activities of the royal family has further jeopardised popular respect for it. The issue for Australia in the 1990s is whether the office of head of state should be completely republicanised, as Prime Minister Keating would prefer, ‘to have an Australian chosen by Australians as Australia’s head of state’ (Keating 1993: 11). While this is an important symbolic issue, it is usually overstated because of the partial metamorphosis of the Australian heads of state that has already occurred in recent years. It does need to be emphasised, however, that removing monarchic formulations from the Commonwealth and State constitutions is not the momentous step that many republican advocates and monarchist opponents are claiming it is. That is because Australia is already a republic in that supreme power rests in the people and th ted representatives. Removing the language of monarchy from constitutions and changing the titles of the offices of head of state is but the final step in regularising the Australian federal republic, which has been only thinly disguised by formal monarchic language and symbols. These ‘dignified’ parts of the system have already changed substantially to reflect Australian republican rather than British monarchic values and an be entirely republicanised if the Australian people so choose Recognition of both these facts should make the complete jettisoning of monarchism more routine. It is but the final step in regularising the Australian republic. Paradoxically, the fact that Australia is already a republic and the symbols of monarchism have been significantly repub- licanised means that it will be difficult to sustain the necessary enthu- elesA FEDERAL REPUBLIC 25 siasm of elites and the people for making the change because, in a real sense, nothing much changes. Moreover, changing formal language and switching symbols is relatively easy compared with issues of institutional design in devising an appropriate alternative structure for the office of head of state and combining this with parliamentary responsible govern- ment, if indeed that is to be retained in its traditional form. The challenges and difficulties to be tackled in redesigning the office of head of state - not least of which is the federal one of effecting the change in each of the States as well as the Commonwealth — have been canvassed by others (Republic Advisory Committee 1993; Winterton 1986, 1988). Our interest here is in establishing the republican basis of the Australian Constitution in the sovereignty of the people and showing how federalism is the central organising principle of government that the Australian people have established. Popular sovereignty Popular sovereignty is the foundation of both modern republicanism and of constitutional federalism. As we shall see in this section and throughout the book, popular sovereignty is the basis of Australia’s constitutional system, The original model of such a federal republic was the American where, as Samuel Beer explains in a recent book, the ‘principle that made possible the distinctively American form of constitutionalism and so of federalism was popular sovereignty’. Beer conclude This fundamental principle of American republicanism was irreconcilably in conflict with the principle of hierarchy which, as embodied in the Old Whig constitution, necessarily implied parliamentary sovereignty over a unitary system, (Beer 1993: 137) When the Australian nation was founded in 1901 it was as a federal Commonwealth established by the people of existing colonies. That is clearly set out in the preamble to the Constitution, which states: the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established. The Constitution that created the Australian nation had been drafted by delegates elected by the people of the colonies to the 1897-98 Federal Convention. It was approved by the people of each colony in a series of referendums before being formally enacted by the British parliament.26 A FEDERAL REPUBLIC These two facts are crucial for establishing the republican basis of the Australian Constitution. The idea of a popularly elected constitutional convention originated in the American experience and was a significant innovation in institutional design. As Beer points out, the constitutional convention was ‘a body elected specially, and in some cases solely for the purpose of establishing or altering the fundamental law of one of the states, an innovation which R.R. Palmer has called “the most distinctive institutional contribution of the American revolutionaries to Western politics” * (Beer 1993: 309). Such a body was necessary for establishing ‘properly authorized governments’ on the basis of ‘a fundamental law binding the legislature itself’. Since the people were sovereign it was appropriate that the convention be elected by them. The alternative ‘compact’ model, which entrusts the drafting process to delegates appointed by the constituent states, is appropriate for a confederal system where the member states rather than the people are sovereign. In Australia, the abortive 1891 Constitutional Convention followed the compact model with delegates appointed by the colonies, whereas the 1897-98 Convention, which drafted the Australian Constitution, was directly elected by the people. The second crucial republican fact is popular endorsement of the draft Constitution by the people voting in referendums. This, rather than formal enactment by the British parliament, was the primary authorisation of the Australian Constitution. Endorsement by popular referendum is the ultimate republican legitimator and is superior to endorsement by constituent States, which the Americans followed. The requirement of popular endorsement of its work imposes a strict republican discipline on a constitutional convention and ensures that its drafting reflects the popular will. Itneeds to be emphasised just how much popular sovereignty was the hallmark of Australian constitution-making. The abortive 1891 conven- tion failed because it had lacked popular support: in the minds of many of the people there was a vague feeling of distrust of the ution, as the work of a body somewhat conservative in composition, ly indirectly representative of the people, and entrusted with no very definite or detailed mandate even by the Parliaments which created it. (Quick & Garran [1901] 1976: 144) When elite support for federation flagged after 1891, it was revived by a popular movement. Grassroots initiation by the Australian Natives’ Association, Federation Leagues and Border Leagues, culminating in the Corowa Conference of 1893, reactivated the federation move- ment on a popular basis. As Quick and Garran explain, it was now considered imperative to have the people involved through ‘theA FEDERAL REPUBLIC 27 principle of the direct popular initiative in the election of the Congress or Convention’: The two things now wanted were popular interest in the framing of a Constitution, and popular confidence in the Constitution when framed; and the best guarantee of both these things was that the people should be asked to choose for themselves the men to whom the task was to be entrusted. The adherents of the Parliamentary system had thought that the people would be less likely than the Parliaments to select men who by ability and training were most suited for the work of Constitution-making; but they had forgotten that more important even than the personnelof the Convention was the public confidence in the Convention. The result showed that the chosen repre- sentatives of the people were for the most part those who would have been the chosen representatives of the Parliaments; but from the fact of their election by the people they had a power, and they enjoyed a confidence, which election by the Parliaments could never have given them. ({1901] 1976: 154) Popular endorsement of the draft Constitution, required by the Enabl- ing Acts of the colonies, was the culmination of the process. The principle of popular ratification was meticulously followed after the constitution draft had been finalised by the 1897-98 convention. Refer- endums were held in four colonies, New South Wales, Victoria, South Australia and Tasmania. Western Australia adopted a wait-and-see position while Queensland remained outside the process, having failed to participate in the 1897-98 convention because the colony was deeply divided over federation and its political leaders did not accept popular election of delegates. Although the draft constitution was approved by majorities in all four participating colonies in 1898, it failed to win the 10,000 majority re- quired in New South Wales. Ata Special Premiers’ Conference attended by all the colonial premiers, concessions were made to New South Wales, including location of the national capital in that state, termination of the Braddon financial clause and substitution of a simple for a three-fifths majority at joint sittings of parliament when the Houses were in disagree- ment. A concession was also made to Queensland that if it joined as an original State, it might divide the State into electorates for Senate elections until federal legislation provided otherwise. The amended draft constitution had to go back to the people for approval, so a second round of referendums was held in 1899 in the five participating colonies. This time Queensland was included but Western Australia again sat on the fence. The results were as shown in table 1.1, The only modification to the Constitution not endorsed by the Aus- tralian people, broadening appeals to the Privy Council under Section 74, was made in London at the insistence of Joseph Chamberlain, secretary of state for the colonies. This was despite strong representation28 A FEDERAL REPUBLIC Table 1.1 Results of the referendum of 1899 New South South — Queens- Wales Victoria Australia land = Tasmania Total Yes 107,420 152,653 65,990 38,488 13,437 -877,988 No 82,741 9,805 17,053 30,996. 791 141,386 Majority 24,679 142,848 7,492 12,646 236,602 Source: Quick & Garran [1901] 1976: 225. from the Australian delegation charged with securing passage of the Constitution. They maintained that ‘the Bill as prepared was an Aus- tralian Constitution in a double sense - Australian not only in origin, but by the deliberate endorsement of Parliaments and peoples’ (Delegates’ Second Memorandum, 27 April 1900, cited Quick & Garran [1901] 1976: 288). In responding for the British Government, Chamberlain acknowledged that ‘the Bill had been prepared by the Australian people’, but denied that the Australian people thereby deemed the imperial parliament ‘merely as a court for the registration of their decrees’ (Quick & Garran [1901] 1976: 242). Chamberlain insisted on broadening the right of appeal to the Privy Council because the interests of the British Empire - really of British investors in Australia ~ were concerned (La Nauze 1972: 248ff). This change was reluctantly accepted and is the exception that proves the rule that the Constitution was made in Australia. All other substantial proposals, for example providing more favour- able access terms for Western Australia and New Zealand, were rejected. In canvassing such last-minute claims from the antipodes, Chamberlain was eloquently reminded by the 1900 Premiers’ Conference in Australia that the bill belonged ‘in a very special sense to the people of Australia, whose only mandate to governments and parliaments is to seek enact- ment by the Imperial Parliament in the form in which it was adopted by the people’ (Quick & Garran [1901] 1976: 237). On this basis Chamber- lain rejected the special pleadings of the governments of Western Aus- tralia and New Zealand and respected the will of the Australian people. The republican character of the Australian Constitution has not been recognised by constitutional lawyers until fairly recently because they have emphasised almost exclusively its formal enactment by the parliament at Westminster. While in a narrow legal sense the passage and proclamation of a British act established the legitimate basis of the new nation, it was only the formal means of doing so that the Australians chose to use. Such a method was entirely appropriate for forming a new nation within the bosom of the British Empire and among ‘transplanted Britons’ whoA FEDERAL REPUBLIC 31 In this passage Mason confronts the objection that the Australian Consti- tution ‘owes its force to its character as a statute of the Imperial Parlia- ment’ and was ‘not a supreme law proceeding from the people's inherent authority to constitute a government’. Rather than rejecting such claims outright, Mason shows that they are incomplete and distort- ing without the accompanying considerations of adoption by representa- tives of the Australian colonies and approval by a majority of electors in each of the colonies. Moreover, he emphasises the sovereignty of the Australian people apparent in the referendum procedure for amending the Constitution. Finally, any possible residual right of Westminster to legislate with respect to Australia was terminated by the Australia Act 1986 (UK). Mason might have added that it was requested and con- sented to by parallel Australia Acts passed by the Commonwealth and State parliaments. So even in extinguishing its legal sovereignty, the British parliament was acting on the will of the Australian people ex- pressed through their representative institutions. In a related case, which restricted the power of the Commonwealth parliament to proscribe criticism of the Industrial Commission, Nation- wide News v. Wills (1992), Justice Brennan contrasted the British system with the Australian. In theory, he suggested, it might be possible for the parliament at Westminster to abolish freedom of speech and thereby destroy representative democracy. But that was not possible in Australia where ‘representative democracy is constitutionally prescribed’: ‘the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains’ (705). The unanimous decision of the court in clipping the power of parliament to curb free speech included ringing affirmations of the principle of popular sovereignty from other judges, including the following from Justices Deane and Toohey: ‘all powers of government ultimately belong to, and are derived from, the governed’ (722). Federalism Since federalism is a more obvious feature of the Australian Constitu- tion, itis surprising that it has been so widely ignored and its significance repeatedly downgraded in favour of parliamentary and responsible government. Until fairly recently the Labor side of politics, as well as progressive sympathisers, often dismissed federalism in favour of majori- tarianism and more centralised government. This sustained attack and the belated acceptance of federalism by the Labor Party are considered in the next chapter. The purpose of this section is to establish its consti- tutional basis.i o-; i il 9 UNIVERSITY PRESS