Canterbury Law Review
Last Updated: 29 April 2013
THE CONSTITUTION OF A FEDERAL COMMONWEALTH: THE MAKING AND MEANING OF THE AUSTRALIAN CONSTITUTION
Cambridge University Press, 2009, 446 pp, rrp aud$83
Reviewed by Dr John Hopkins, School of Law, University of Canterbury
There are few subjects which give rise to greater confusion beyond the shores
of the lucky country than its federal system. Even the
average Australian seems
to have a sketchy knowledge and an ambivalent relationship with this most
fundamental of their country's
constitutional elements. Truth be told, even
federalist groupies like myself tend to avoid Australia when we undertake our
researches, such are the idiosyncrasies of the Australian system.
Nick Aroney's book is therefore a welcome insight into the historical
the Australian federation and confirms the importance of this historical context
to understanding the system today.
Aroney's thesis is a simple but compelling one. He starts from the premise that to understand the Australian federation, one must understand its historical creation. Only by doing so can one hope to make sense of the system as established. Such analysis reveals two important, yet at times overlooked, facts. Firstly, that the constitution established in 1890s was federal at its heart. Federalism was not one element of the constitutional document developed from 1891-98, it was the overarching one. In addition, although the framers had (for pragmatic reasons) a federal focus in their deliberations, such was the nature of the debates in 1891-98, their specific concerns and influences were very different from those who have examined and attempted to understand the intricacies of the scheme in the years that followed. In such a context, the Australian federal compact begins to make 'sense' only when its historical roots are properly understood. This book takes this point further, however, arguing that modern interpretation of the constitution needs to take these factors into account, not least in recognising that reference to the sovereignty of the Australian people (rather than 'peoples') is fundamentally flawed.
The thesis of the book attempts to steer an alternative course between the extremes of 'national' and 'compactual' sovereignty. Aroney argues convincing that these two models, which place sovereignty in either the national 'people' or the individual states, do not fit with the realities of the Australian model, if indeed they truly explain any federation. These approaches, he argues, are rooted in a misguided reliance upon indivisible sovereignty. Rather than adopt a compromise between the two, Australia adopted a unique 'Commonwealth' approach which has elements of both. This is no secret as the phrase is, of course, part of the preamble of Australian Constitution. However, Aroney argues that this phrase has real meaning. The 'Federal Commonwealth' describes a complex compact between the peoples of the constituent units, the national level and the
states themselves. Only by such an approach can the complexities of the
Australian Constitution be unravelled and, most importantly,
interpreted in the
The work is divided into four parts, with an introduction which sketches the basics of the arguments to follow. The first substantive part lays the theoretical basis for the later analysis and the first chapter treads some fairly familiar ground on the subject and nature of federalism. The debate on the nature of federations and federalism is as old as this form of government and Aroney examines some of these debates in the context of the Australian example. It concludes with the author's analysis that to understand federalism, the concept of sovereignty is best avoided. In the second chapter, the author turns his attention to the importance of the historical basis to the ongoing understanding of federal systems. All federal systems bear the imprint of the complex matrix of ideas that created them. Australia is no different and if one is to construct a workable theory of Australian federalism then it must be rooted in its historical context.
Part II develops the arguments in the Australian context by examining in turn a number of key influences upon the Australian federal model. In particular it examines first the overseas influences on the Australian model and the means by which the Swiss, United States and Canadian models were received into the Australian debate. In this context, the importance of US authors such as Madison and Bryce, as well as Dicey are examined. A further chapter then examines how the various Australian authors utilised these external authors, including Quick and Garran, Isaacs and others. The concluding sections of part two give the political and institutional contexts for the Conventions of 1891 and 1897-98. These chapters give an excellent insight into the main characters and wider context to the drama that enfolds in Part III. Importantly, it makes it far more explicable to the reader why the Australian federation turned out the way it did, with the de facto sovereign states reluctant to give up their recently won autonomy. This was no Diceyan division of powers, this was a State of States. The importance of the composition of the 1897-98 convention and the means of ratification (by the populations of each state) is emphasised by Aroney. Without these particular procedures, which demanded a high degree of individual state approval, the Australian federation may have looked very different.
The book then turns to key federal elements of the constitution, namely the modes of representation, the relationship between the States and the Commonwealth, the powers of the levels of government and finally the mechanisms by which the constitution could be amended. In each case, the debate between nationalists, who favoured the sovereignty of the Australian 'nation' and the states-rightists who argued for a more compactual relationship, clashed. The result was not sovereignty of one level over the other, or one people over the other but rather a complex manifestation of the State of States advocated by the likes of Montesquieu. Thus was created Australia's unique Commonwealth of Commonwealths, the 'Federal Commonwealth' of the title and preamble to the Constitution of Australia.
For a non-Australian reader, this historical insight provides an excellent illumination to the sometimes strange machinations of the Australian constitutional beast. The argument is compelling and, despite the depth of its analysis and necessary detail that the author enters into at times, the work remains remarkably readable. Overall this is an excellent piece of work and I suspect will prove to be a seminal work on Australian federalism. There is no doubt that most New Zealanders would benefit from a much better understanding of the federal nature of our big brother across the Tasman. I can think of no better place to start.