October 19

Federalism and the Crown – The Odd Couple


The YWCA Hotel Conference Centre
Sydney, Australia
Transcript as released by the Office of Research and Education

PROFESSOR MELLEUISH: The Australian system of government at the federal level is an amalgamation of responsible government and federalism. By responsible government is meant what the British in the nineteenth century called party government and is also referred to as the Westminster System. The government, and its officials, are responsible for their actions and expenditure to the Parliament and hence ultimately to the people who elected them. Federalism means that the power to make and administer laws is divided between a central government and provincial or state governments with each competent within its own particular sphere. Responsible government tends to concentrate power, federalism to separate and diffuse it.
Responsible government stands for democratic accountability, federalism for the liberal idea of the separation of powers and the diffusion of power generally. On first inspection it might seem that responsible government would be more likely to be associated with the ideals of monarchy and federalism with those of republicanism. However, when we look more closely we can see that both federalism and responsible government are elements of the development of constitutional monarchy.

The early advocates of the idea of sovereignty, such as Jean Bodin in France and Thomas Filmer in England, were opposed to the idea that sovereignty could be shared by a number of bodies in a political entity. Both were monarchists of the Absolute variety and were opposed to the idea of mixed government. Mixed government is the theory that the most effective system of government, and the one least likely to decay and degenerate, is one in which power is shared between the one (monarchy), the few (aristocracy) and the many (democracy). The struggle of Parliament against the King in seventeenth century England was not directed against monarchy as such. Rather it opposed the unified ideal of monarchy and sovereignty that concentrated power, in an unaccountable way, in the hands of the monarch. It favoured a mixed system in which power was shared.
In the wake of the Glorious Revolution of 1688 the English tended to understand the form of government that the Revolution had established as being mixed in nature. The key players were the Monarch, the aristocratic House of Lords and the democratic House of Commons. Certainly the French philosophe Montesquieu recognised that the British (as they had become after the Act of Union) had created a new type of political system. It was not a republic like Venice or ancient Rome, but neither was it a traditional monarchy like France.

Eighteenth century England was a regime in which commerce flourished, in which people enjoyed a degree of freedom unknown in continental Europe but which nevertheless possessed a strong state structure. It was this combination of power and liberty that was most startling. Britain was more powerful than France despite its smaller population and yet it could be powerful without resorting to tyranny and coercing its population. Many saw ‘mixed government’ as the key to maintaining the balance between power and liberty. ‘Mixed government’ is what we today would understand by the term ‘Constitutional Monarchy’. In it the Crown operated as a unifying principle guaranteeing the constitution and the rule of law that provided the basis of British power. The other elements of the constitution ensured that the power of government did not over reach itself and become despotic.
The British Constitution was the product of slow, and sometimes painful, evolution in England and then Britain. The loss of the American colonies indicated that it was not perfect. Parliamentary sovereignty seemed to be at odds with the rights of British Americans. It raised the real problem of what the British Constitution meant in British colonies that had not grown slowly and organically but had been created in a short period of time.
What did the British Constitution mean in a ‘new’ British colony? How could it be transplanted so that it preserved the delicate balance between liberty and power? Contrary to the views of recent Republican writers, the majority of colonists at the time of the granting of responsible government to the Australian colonies in the 1850s were not republicans. They were men and women desirous of having a system of government as close to the British Constitution as possible. In fact the hero of our present day republicans Dr Lang was a sectarian bigot who wished to create a Calvinist utopia in Australia. No, most colonists wanted the British Constitution, although they often not did agree as to what it was. Hence there was, to our eyes, the almost bizarre attempt to create a colonial aristocracy by W C Wentworth. But to his eyes, and to those of many of his contemporaries, a mixed constitution meant that you had to have ‘the few’ to balance the many. To their eyes pure democracy meant anarchy.
Their problem was that they did not understand that one could apply the principles of the British Constitution to a new society without being limited by the form of that constitution. What mattered was creating a structure that both consolidated and diffused power. And it was the British who supplied the solution in the shape of federalism. As J M Ward has demonstrated the granting of responsible government, the ‘decolonisation’ of the Australian colonies, was meant to be complemented by federalism. The British knew by experience that small self-governing colonies could adopt selfish policies, such as the protection of industry and laws harmful to the indigenous inhabitants. They saw federalism as a means of encouraging free trade and of overcoming the possible excesses of in which small political units were capable.

Federation did not happen in the 1850s. The new political elites of the various colonies were more interested in consolidating responsible government joining together with the other colonies. Nevertheless advocates of federalism such as John West were able to put forward solid arguments in favour of federation that made it seem to be the ‘natural’ next step for the colonies to take. West argued that a federal system was the form that the British Constitution took outside of Britain. It recreated through its institutional forms the balance between power and liberty that had evolved slowly in Britain. Responsible government had been granted; federalism was in the wings. The engagement was, however, to be a long one.
The Federal movement of the 1890s was able to bring this engagement to an end and finally to allow the marriage of responsible government and federalism in the new Australian Commonwealth. It can be described as an innovation and as an attempt to marry the American and British systems of government but I believe that such descriptions are misleading. I believe that it is best understood as the creation of a system embodying the essential principles of the British Constitution, of Constitutional Monarchy, for Australian conditions. The crucial principle, as mentioned earlier, is establishing a balance between liberty and power. Australian Constitutional Monarchy is about creating a strong system of government that can protect the interests of its citizens while at the same time enabling those citizens to enjoy the maximum amount of liberty.
Responsible government is the major means through which a strong system of government is created in Australia because it allows for a concentration of authority that can be exercised by the government. Federalism is one of the checks and balances that ensure that this concentration of authority does not become excessive and hence turn into a form of despotism. The others are the separation of powers as set out in the Commonwealth Constitution and the establishment of the Senate as a states house with powers almost equal to the House of Representatives.
It is odd that Responsible Government, with its obvious tendency to concentrate power if left unchecked, has often been associated with ‘democracy’ in Australia. For a long time the Labor Party associated itself with the cause of abolishing the states and the Senate, leaving only a single house of parliament to rule the country. If that had happened we would no longer possess a constitutional state but a sort of elective dictatorship free to do as it pleases, just like Queensland in its glory days. It is perhaps instructive that Australia has never swung to the extremes of either welfare state or libertarianism unlike our Tasman cousins who also only possess one House in a centralised structure. Democracy combined with power, if left unchecked, can do terrible things. One has only to read the pages of Thucydides and encounter the demagogue Cleon goading the democratic Athenians on to what we today would call genocide to see that. The genius of Constitutional Monarchy is that it does not let that power go unchecked.
That does not mean that federalism and responsible government are in harmony or that one does not seek to dominate the other. For most of the twentieth century it was federalism that was on the defensive as the Commonwealth government claimed more and more power. This was done with the active connivance of the High Court and through the acquisition of financial power, particularly of income tax. The states became mendicants forced to take their begging bowls annually to Canberra.

Moreover the Senate early ceased to be effectively a states house and was for a long time dominated by the major parties. It appeared for a long time as if the ‘checks and balances’ were not doing a lot of checking, let alone balancing.
In some ways the balance has moved back a little the other way in recent times. The High Court became more active in the 1980s and early 1990s, although its activism was hardly beneficial to the states. It was the ruling of that Court on the meaning of excise that created the crisis that has only really been resolved by the decision of the current government to give the GST to the states. The states are still the financial dependents of the Commonwealth and perhaps are in danger of developing the political equivalent of welfare dependency.
The major development of the past twenty years in Australian politics has been the growing power of the Senate. No government has controlled the Senate since 1980 and none is likely to in the foreseeable future. The result has been that the minor parties in the Senate have flexed their muscles and sought to use their power to make that House more powerful and the government of the day more accountable. The result has been that governments of both persuasions have found themselves unable to get legislation passed and have complained in the name of ‘democracy’. But, as we have seen, under responsible government, ‘democracy’ is closely allied to power. At least some of the Australian people understand this and ‘perversely’ continue to vote for these minor parties.
The advocates of the power of the Senate claim that its power means greater accountability and better legislation. The critics claim that its power frustrates the passage of necessary legislation and hence is the enemy of good government. Perhaps the real consequence of the power of the Senate is that in true British (and I should add Austro-Hungarian) tradition we muddle through rather than being decisive. In other words, as noted before, we avoid extremes.
In any case it will have to be left to the Australian people to decide ultimately if they wish to emasculate the power of the Senate. Nevertheless I think that we should be wary of the claims of efficiency in deciding to take such a radical step with regard to our system of government. The system of government that has evolved in Australia out of the British Constitution, that is to say our unique form of Constitutional Monarchy, has, like that Constitution, sought to bring together power and liberty through the marriage of responsible government and federalism.
We should never forget that power has a tendency to devour liberty. The current state of Australian federalism illustrates that point all too starkly. We should seek to preserve as many of those checks and balances as possible in our system of government. Democracy and efficiency are fine words but too often in practice they mean riding roughshod over the concerns of those who do not share the majority view. ‘Muddling through’ may sound unattractive but in practice it reflects the reality of the world. That reality is about compromise, it is about avoiding foolish decisions and most importantly it is about preserving liberty.
And it strikes me that ‘muddling through’ are good words for a Constitutional Monarchist to use. We have inherited a system of government that has evolved out of the British Constitution and that like the British Constitution seeks to combine liberty and power. We need strong government and we need to be free. We need responsible government combined with federalism and a system of checks and balances. That means avoiding extremes, it means keeping to the ‘golden mean’. It may mean at times muddling through rather than adopting radical means that appear to be superficially attractive but in the end have as their major consequence the destruction of the balance of our Constitution.


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