Western Australia, whose citizens had resisted Federation for some time, only voted on the issue on 31 July , weeks after the constitution received royal assent. Part of the inducement offered to the colony to join the new nation was a promise that the new Commonwealth government would build a railway link to the eastern states. On 31 December he swore in the first federal ministry, with Edmund Barton as caretaker Prime Minister.
The first federal election took place on 29—30 March , with Barton continuing as Prime Minister. One of the first things it did was enshrine the White Australia policy in law. The constitution established a bicameral parliament, comprising the Senate as an Upper House of Review, and the House of Representatives or Lower House. Both houses could formulate legislation to make laws on behalf of the new Australian nation.
However, the Senate had no power to introduce money bills. The site for a federal capital was a source of much dispute between Sydney and Melbourne, with both cities wanting the honour. The compromise was that a separate territory the Australian Capital Territory would be established within New South Wales. It was to be at least miles from Sydney and would hold a new capital.
Parliament would sit in Melbourne until the new city was built. The site eventually chosen for the city became Canberra. Museum Victoria. Specific areas of legislative power were given to the federal government, but not for the first 10 years or so. This meant that the states could retain revenues a while longer, including taxation, defence, foreign affairs, migration, naturalisation and aliens, and postal and telecommunications services.
It did not have powers to make special laws for Indigenous people, a situation not rectified until a referendum in States retained power over matters within their borders that were outside the power of the Commonwealth, including police, hospitals, education and public transport. Federation was a remarkable political achievement.
Colonies had jostled to protect their interests. New South Wales had competed with Victoria for influence, and the smaller colonies had feared their interests would be ignored by the larger colonies. But consensus had been reached. The British monarch remained the head of state, but Australia was now largely self-governing, though it retained close ties to Britain and its empire.
Australians remained British citizens until the Nationality and Citizenship Act provided for separate Australian citizenship.
The six states felt that they belonged together because they shared not only a continent, but also a British background. Federation achieved an independence of sorts for Australia. Resource Sheet 5. Where would the capital of the Commonwealth of Australia be located? Resource Sheet 6. Henry Parkes, Premier of New South Wales, delivered a speech at Tenterfield in , calling for the six Australian colonies to unite and form one national government.
The population of the colonies was increasingly composed of Australian-born people. Unlike their parents and grandparents who had come as migrants, those born in Australia saw themselves as Australian, not British. Colonial separation was also an inconvenience for trade and travel, and could be disastrous for defence in times of war.
Imagining one nation without colonial divisions was one thing. In fact, a united Australia was already celebrated in the poems and songs of the day, and a combined Australian cricket team was playing test cricket against England. However, actually bringing the colonies together was quite another proposition. In , Henry Parkes again urged the colonies to unite, and they agreed to explore this at a Constitutional Convention in Sydney the following year. The Convention was attended by seven delegates from each colonial parliament, and by three delegates from New Zealand.
Andrew Inglis Clark, a member of the Tasmanian delegation, had researched the constitutions of the United States, Canada and Switzerland. All of those countries were federations, a model that a united Australia would adopt.
Through greater ease of monitoring and the action of competition, it makes government less of a burden on the people. It is desirable in a small country and indispensable in a large one such as ours. Question — I would like to ask you if your feeling about the quality of federalism is affected by such things the upcoming New South Wales election [April ]—with its enormous ballot papers and huge proliferation of minor candidates and so on.
Do you have any comment about that? What people are trying to do is to express a view on something that is near and dear to their hearts.
That's why you have all these little parties being put up for the upper house. But that's a very clumsy way of doing it. It's the only way people have at the moment, it's the only way they have in the Senate, or in most unitary countries for that matter. A much better way would be to introduce the Swiss system of direct democracy, where people can petition for a referendum on a particular question, then you wouldn't need this proliferation of parties.
Question — With your admiration of federalism as a means for Australia for the future, can you see a reason for the reluctance to an extension of federalism by the creation of new states such as New England part of New South Wales and North Queensland? In reality, are we really six unitary states here, with the Commonwealth position as yet undetermined?
Geoffrey Walker — There is always the opportunity under our Constitution to create new states, and the New England case was a good example. In fact it was a very innovatory plan in a lot of ways. It had some of the Swiss institutions I've mentioned. They were building direct democracy into their system. But obviously people were happy enough with New South Wales as it was, because even a majority in New England couldn't be mustered.
It's just something that might happen and it might not. In Switzerland a few years ago they created a new canton of Jura, because the people of Jura wanted it.
Well, if people want it, why shouldn't they have it? We're far from having any Balkanisation in this country and if people think that the existing units are too big, well, why not? Question — I'd like to raise with you the disparities amongst the governance of nations.
Once upon a time there were kings, queens and emperors predominantly. Most of those have gone, but there are immense differences between the governance of states. For example, the Labor Government threw out the draft criminal code back in , and we are still struggling to get a uniform model code around the rest of the country.
Queanbeyan has a different criminal law to Canberra, which is ridiculous. These immense discrepancies between the governance of states mean that it is going to be much more difficult to have states combining and being common in their approach to life and policy, so that in fact we are still left with the national differences that used to exist under kings, queens and emperors. Do you concede that there is a need for more standardisation in the way states are governed?
Geoffrey Walker — I don't regard diversity as a problem. I regard it as a basis for experimentation and a basis for people to get what they prefer. If South Australians want to experiment with making marijuana an infringement-notice offence, why shouldn't they? And if Queenslanders don't want to, why should they have to? I haven't looked lately at the drafts of the uniform criminal code. It might be a good idea or it might not, but it's not automatically a good idea, just as the legislation seeking uniformity of the laws of evidence has not turned out to be a good idea, it has just enhanced the power of the judge.
In a federal system, you should have uniformity if the benefits exceed the detriments; but you can't blame people for not accepting a uniform model if it is detrimental, as is the legislation seeking uniformity of the laws of evidence.
So I don't see it as a problem—I see it as a field for creative experimentation. Question — I would like to ask two questions. In places like India and Pakistan, which are federal nations, the chief body has power to dismiss the states, but that doesn't exist in this country.
That's one issue, and the second issue is the Commonwealth versus states issue, where in Australia there is a specific set of powers to the Commonwealth with residual power to the states. They are two different types of relationships—one has an ability to dismiss a government, and the other sort has different powers. Are they totally different forms of a relationship? Geoffrey Walker — There is no single definition of a federal system. It's flexible enough to accommodate the sorts of variations that you indicate.
Personally, I would not like to see a federal government with a power to dismiss state governments, because that dilutes the accountability of the state government to its people. Why shouldn't it be accountable to the people who live in that area, rather than to people who don't live in that area? Still, you can have variations of all sorts. One thing you must have, is some sort of formal division of powers.
In this country we have specific powers assigned to the Commonwealth and the rest to the states, although that's been diluted by some High Court interpretations of the Constitution. In Canada you have the opposite model, but it was decentralised by the Privy Council's interpretation. So there are various models, but you do need some sort of constitution, otherwise you just have a shifting mass and nobody is clear on who's accountable to who for what. This is the problem with the European Union.
And you have a European court that interprets loose, rubbery language invariably so as to expand the power of the Union, without democratic consent, without consultation and without constitutional conventions. That is why many people are so resentful of it, not only in Britain, but in all the other countries, except the ones that have been subsidised most handsomely, like Ireland and Italy.
But with the advent of the euro, how long will the subsidies last? I've always favoured European integration in a lot of ways—in fact I did my Masters thesis on it—but it has to be integration with the consent of the people. It has to be a commitment to a clear charter, and not just a gradual takeover by a bureaucracy.
I understand that there is no longer such a thing as a British passport. The British found one day that, if you go and apply for a passport, it's not a British passport, it's a European Union passport. They are now citizens of the European Union. They are also citizens of the United Kingdom, but that doesn't mean much because the European Union effectively controls entry into the United Kingdom. If they want a European Union passport, fine. We have to be very careful in Australia, with the APEC meeting coming up in September, that we don't slide into a similar pass.
We may stand to gain from various forms of free trade in the region, but let's not fall for a supranational body with an open-ended charter that can spring surprises like that on us over the weekend. Question — I was interested in your comment about identity cards, and you seem to equate having compulsory identity cards with being centralist elitist, versus democratic federalist. Australia, the United States and Canada don't have them, and are federal, but Germany and Switzerland do have them, and I think they come under your heading of very good federals.
Geoffrey Walker — I didn't say that it was necessarily an anti-federalist institution, I said it was an elitist one, and I still maintain that. There have been attempts to introduce it in the United States, but they've failed. They have also been attempted in the United Kingdom, unsuccessfully. Germany has a long tradition of these things.
If it were starting off again in the nineteenth century before they had them, they probably would not adopt them. But with the history that they have, where European countries were almost continually at war, identity cards were effectively a wartime institution that did not go away. Even in this country it became the rule in wartime. What I was saying was that things like control of media and compulsory identity cards are unfailing litmus tests for elitism, other things being equal.
Question — Are you really not bringing out into the open the fact that the true argument here in Australia will develop into not unitary or federal , but what sort of federal? And isn't the worldwide problem—if your statement of history is to be accepted, as of course we do accept it—not that the move is towards federalism, but the question of what sort of federalism?
Some of your own illustrations show the need for a strong central power. For example, your reference to the Trade Practices Act and the advantages it was able to pass back to states and businesses, where they could compete. But the fountainhead of that was central action.
In Australia we're affected by globalisation of industry. It's not simply a question of state and Commonwealth in competition, and citizens in competition across state borders. That is important, but you have multinational companies operating across boundaries, you have criminal gangs so we're told operating across international boundaries, and there is in many cases a need for equivalent strength at government level.
But the problem all the time, perhaps, is to know what sort of situation calls for what sort of answer. It may be too simple to leave here with the feeling that it is simply federation against unity. It is what sort of federation, what sort of compromise, that's still being worked out in Australia, as one sees through the High Court decisions that you referred to. Is there something you feel you ought to say about that? Are you suggesting that our form of federation be freed up; that there should be more power in Australia passing from Commonwealth to state?
Is that a matter of devolution? Is it a matter of discussion and co-operation between state and Commonwealth, of which there seems to be a great deal? Is it a matter of re-writing the Constitution?
Geoffrey Walker — Of course there will always be various models of any system of government, whether unitary or federal, and of course our founders looked at the available models when they were studying the problem in s, and other countries such as Indonesia are looking at a variety of models also.
So there's always a range of models to choose from, and one must always consider the need—and it is definitely a need—for central power on some matters, and the example of the Trade Practices Act is a very good one. That institution came into being as a result of the use of certain powers in the Constitution, particularly the trade and commerce power and later the corporations power.
I don't think one can simply say that in Australia we're only going to be talking about different models of federalism, because there are people who want to abolish the whole thing and have a central unitary system. So I don't think one can ignore that argument. That argument is entitled to respect, and to be considered. We will of course have debate about what sort of federation we should have, but personally I don't think the Constitution needs to be re-done in order to bring about what I would consider a more effective and more decentralised model.
I think the model is there already. Problems such as what has happened in universities are the result of the Commonwealth exercising powers it doesn't have, through the use of the conditional grants power. Obviously the power is broadly worded, but the way in which it is exercised needs to be looked at again, and in fact there have been changes in emphasis in the way in which it has been exercised, not only under this government, but also, at one stage, under the previous government.
So, yes, there would always be a debate about what sort of model of government we should have—there should be a debate. But I don't see any need for any change to the Constitution. What I do see a need for is to look again at what it does do and how it is interpreted. Question — Can I ask what importance you would place on the constitutional recognition of local government?
Because there are many, I think, who would probably see that as the most accountable, flexible and innovative sphere in Australia at the moment. In New South Wales we're talking about voluntary amalgamations of councils. If this is not done in the context of a review of the responsibilities between the three tiers, it's very hard to tackle it at the ground level without seeing any hope of a shuffle going on between the powers and the three tiers.
Because at the moment there is more and more being dumped on local government, with less and less coming from the states or the Commonwealth to make that possible—which has certainly made us lean and mean and fast, but it's not going to work in the long term. Would the start be constitutional recognition? Geoffrey Walker — I don't see any need for it. The Constitution gives the power over local government to the states, and the states can restructure it any way they like.
It's not inconceivable, for example, that a small state—we don't have one this small, but say you had a state as small as Rhode Island or Delaware in the United States—a state like that might decide, like the Australian Capital Territory, not to have local government, just to have a state government, perhaps with direct democracy on the Swiss model. The Swiss in fact do have the three levels, even though some of their cantons are very small. But, no, I don't see any need to recognise it.
It can be done already. Question — It seems to me that you've built the whole premise of your argument on the fact that federalism equals more democracy, equals better government. It seems to me it is like the paradigm that says: we just can't get enough of democracy; you can't have too much. But I'm concerned about this. I was just wondering how far one can stretch this concept—this essentially eighteenth century concept, at least in its modern reincarnation—to make it fit twenty-first century politics, before we run into the problem that its costs, in terms of political division and political instability, start to outweigh its benefits.
And doesn't that then get us all the way back to the fragmentary effects of feudalism, which is perhaps tied into federalism, and where it all began and where this whole need to have a political power centre to which all power centres gave their legitimacy. This is where Britain started from, and doesn't this then lead us back into the full circle of where it all began. Geoffrey Walker — I think you've highlighted a central problem in the whole question of government, which is the question of the appropriate constituency.
I'm not a political scientist and I can't really develop that subject very much, but it is related to the point raised in an earlier question in relation to the voluntary amalgamation of local government areas. How small or how big is a suitable self-governing entity? Obviously some can be too big—I argue that Australia would be too big to be governed from one place—and some are too small. You can see this in some small municipalities, which don't have an adequate cross-section of interests and people, and that adopt very parochial rules, like sealing off all the streets so that you can't drive through.
Maybe that's good from one point of view, but it's a very inward looking and selfish rule adopted because it's too small a group to give an adequate interplay of different viewpoints. So, yes, I think it does go back to a fundamental question in the whole sphere of government, which is the appropriate size of a unit of government that can be accountable to a constituency.
But I don't think we face that problem in Australia; I think our problem is the other way around, and I would prefer to see more democracy.
As I have indicated, direct democracy systems, especially at the state level, would do away with the need to have a ballot paper the size of this carpet. Question — I'm currently studying under Wolfgang Kasper, and I'm looking at the idea of competitive federalism in Indonesia. Can competitive federalism be imposed on a country such as Indonesia, given its problems? What do you see as the difficulties for a country like Indonesia adopting something that is so alien to what they know?
Geoffrey Walker — It is never a good idea to make policy on the run, and even less of a good idea to make constitutions on the run. So really, they should have thought about this before, and it's unfortunate that they've waited until they've got secessionist movements in Timor, Iran and various other places, in order to start thinking about it. But I believe the Indonesian people are perfectly capable of deciding whether they want such a system.
I don't believe in imposing systems of government on anybody, but the Indonesian people on the whole are quite a well-educated people, and I don't see why they would not be capable of judging whether they want a measure of regional self-government, and, if so, what measure of it. They are already asking for it in many instances, so I can't see why they shouldn't have it.
Now the problem of course is, how much time have they got to decide on such a model? It's unfortunate but the problem is brought about by the fact that they stuck with a rigid unitary system too long and didn't look at alternatives. An expanded version was published in the September issue of the Australian Law Journal , vol.
See generally D.
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