Constitutional Tourism: Australia’s America

In 1897, Mark Twain observed that “Australian history is almost always picturesque; indeed, it is so curious and strange, that it does not read like history, but like the most beautiful lies.” Whether this still applies to Australian history is a moot point. Post-1897, it’s fair to say Australia has had a rather less dramatic experience than many other places. It hasn’t produced too much history even for local consumption—at least not yet.

That said, in 1897, Australia was most of the way through a series of constitutional conventions and referendums that would lead to the enactment—by the UK Parliament—of a written Constitution and Federation in 1901. This process required a series of state-based referendums, with an EU-style effort (“vote again until you get it right”) in New South Wales. Having voted NO the first time around—in 1898—NSW voted YES in 1899 after its electorate was assured Melbourne (the state of Victoria’s leading city) would not be the national capital. 

This is how the country got saddled with Canberra—complete with altitude, unpleasant climate, and remoteness. Yes, the capital would be built in NSW, so long as it was at least 100 miles from Sydney. Melbourne, meanwhile, was permitted to be the temporary seat of government while Canberra was under construction. 

This is the kind of story—although it took place after he made his comment—that Mark Twain probably had in mind. 

When considering the Declaration of Independence’s influence—and that of US Constitutionalism more widely—on both the process of Australian Federation and the newer country’s own written Constitution, we’re helped by the fact that Australia has its own version of Hamilton, Jay, and Madison’s Federalist Papers: Quick and Garran’s Annotated Constitution of the Australian Commonwealth (1901).

While both sets of writings had limited influence on the process of constitutional ratification (in the US) or federation (in Australia), their subsequent contribution to constitutional governance in both nations has been immense. This is because they came after the matter was settled but before much spadework was done. Quick and Garran even apologise for it: “we are fully sensible of the difficulty of attempting to expound a Constitution before it has been the subject of practical working or judicial exposition.” 

Instead, these two great works contain the whole theory of their respective countries’ constitutional arrangements. 

There is more than a patina of similarity between Australia’s failed Federal Council and the USA’s failed Articles of Confederation: the former lacked an Executive and the latter required unanimity, which amounts to the same thing. When Robert Garran attended—only as an observer, sitting in the public gallery—the first Australasian Convention in 1891, it wasn’t just to watch “history…in the making under my very eyes.” In the lead up, when he was a teenager and young man, France had been busily laying territorial claims to sundry Pacific Islands, while Germany had designs on New Guinea. Meanwhile, the Australian colonies—ancestors of the country’s modern states—were levying tariffs on each other and building different railway gauges in each state. Queensland—originally a poor state—forced its inhabitants to suffer the narrowest in Australia, at 3’6”.  

The Federal Council, created in 1885 after multiple fits-and-starts, proved useless. 

This sort of thing seems daft to our modern eyes. Precisely because the centripetal forces that led to ratification and federation “won” their respective historical and political arguments, those victories have a look of inevitability to them. While Australian Framer Sir Henry Parkes echoed John Jay’s words in Federalist No. 2 when he (correctly) argued that “the crimson thread of kinship runs through us all,” there’s an alternative universe where what many Framers called “the lion in the path”—tariffs between the colonies and intense internal political divisions over them—stymied Australian federation and the country broke into separate Commonwealth nations.

Like Hamilton, Jay, and Madison, both Sir Robert Garran and Sir John Quick were major participants in the movement for their country’s federation and in the drafting of its Constitution. Garran even pioneered for it a simplified style of parliamentary draughtsmanship so distinctive it could be parodied, and which exercises considerable influence on the training of Australian parliamentary drafters to this day. 

The Annotated Constitution of the Australian Commonwealth reveals the founding document’s sources on every page—including many US ones. It achieves this by a simple design expedient:

In these Commentaries, the text of each clause of the Act and each section of the Constitution is printed in large type. After the several clauses and sections are printed in small type the corresponding provisions of other Federal Constitutions. Then follows a Historical Note on each clause and section.

This device means—to turn to a passage whose wording should ring American bells—if one looks up Section 116 one finds, first, the text of the section:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Then, underneath, Quick and Garran cite Art. VI. Sec. 3 of the US Constitution and the relevant part of the First Amendment.

The thefts—although the Australian Framers did not see them as such—are obvious, but so are the absences and elisions, remembering Australians were writing and re-writing provisional constitutions roughly a hundred years after their American models.

If John Locke is the father of the US Constitution and John Stuart Mill and Adam Smith the fathers of modern British approaches to governance, then Australia’s dad is Jeremy Bentham, the bloke who described natural rights as “nonsense upon stilts”. He rejected the idea of natural or divinely given rights preceding the establishment of state authority, arguing that rights are creations of law, and without government there are none. Rights, in other words, come from states. The contrast with John Locke is immediate and obvious: for Locke, individuals and their rights come first, and government comes afterwards. The state for Americans is a bottom-up creation where citizens transfer to it by social contract only so much authority as is strictly necessary for mutual benefit and protection. 

Most importantly, where the US favours liberty and rights over democracy and majorities, Australia favours democracy and majorities over liberty and rights. To this day, the country has no Bill of Rights, and what rights do exist (usually at the state level in a federal system) are simple acts of parliament that can be repealed by a hostile government. Sometimes, too, they are simply ignored without being repealed, as Victoria’s was during the COVID-19 pandemic.

This unusual constitutional set-up gave me no end of trouble when I was doing the rounds of the studios trying to explain how Victoria Police came to use rubber bullets against protesting trade unionists outside a war memorial, repeating myself ad nauseam. Each time, I’d have to point out to stunned talking heads that the popular image of Australia as a land of anti-authoritarian larrikins is about as genuine as a pile of three-dollar bills.

The Met does not use rubber bullets; no police force in Britain ever has. Associated in the public mind with colossal historic policing failures in Northern Ireland, the reactions to their use in the most prosperous bit of the Commonwealth (Australia, like the US, is filthy rich) amounted to incredulous horror. Boris Johnson was famously hung out to dry when he purchased water cannon while Mayor of London. Said water cannon—never used—were quietly disposed of when no-one was looking to assuage his embarrassment. And as is well known, Boris is not one who readily evinces shame.

Aware that Bentham’s approach to institutions tended to produce electorates that saw the nation-state as a vast public utility, Australians put immense care into designing the country’s institutional arrangements and electoral system. There is little beautiful rhetoric in Quick and Garran—a notable contrast with the Federalist. There is, however, astonishing attention to detail and a bowerbird-like willingness to pinch good things from other countries and civilisations: the secret ballot from the Romans, referendums from Switzerland, the Westminster system from Britain, an upper house comprised of senators apportioned equally between the states from the US (although Australia’s senators were directly elected from the outset), federalism from both the US and Germany. An obsession with policy detail still forms a major part of Australian governance. Australians trust government in a way Americans and even Britons do not.

Mind you, Quick and Garran aren’t shy when discussing what they consider to be superior Australian enhancements of American—or British—models. When pointing out that Australia’s Constitution emerged thanks to what “was in four colonies a popular initiative and finally, in all the colonies a popular ratification of the Constitution,” for example, the two men quote—by way of contrast—the famed John Quincy Adams passage where he observes that the US Constitution was “extorted from the grinding necessity of a reluctant nation.” 

This isn’t to say that the claims present in both the Declaration and US Constitution meant nothing to Australia’s Framers. It’s rather that they had different sources along with substantive disagreements, which necessitated divergence over time. Both Constitutions, of course, were born of brute historical fact, facts (happily) reduced to writing. In the US, the fact of revolution produced a Declaration of Independence, source of Constitutional sovereignty. In Australia, a series of state-based referendums conducted throughout the 1890s were followed by the Constitution’s passage into law. 

As an act of the UK Parliament, Australia’s Constitution and the national sovereignty it embodied were nonetheless delegations of power from the UK’s Constitution as enumerated in Bagehot’s and Dicey’s day: Magna Carta, Bill of Rights, Acts of Union, the Reform Acts. This is a crucial difference from the US. “That power, though dormant,” Quick and Garran note, “is not extinguished or abandoned by the delegation.”

Australia’s final severance from UK law-making took place in 1986, with passage through both Parliaments of the Australia Acts. The process of sovereign and jurisdictional parting had, however, already taken place over a period of many decades. The 1986 legislation’s only practical effect was to prevent appeals from state Supreme Courts to the UK House of Lords—sitting as the Judicial Committee of the Privy Council—a rare jurisdictional fudge used to bypass Australia’s senior appellate court, the High Court. The last of those appeals was heard in 1980, in historically unusual circumstances. 

This means Australia avoided both the UK’s post-1997 constitutional disfigurements and all the policy shifts—both good and bad—incidental to membership of what was then the European Community. Joining the European Union or even stealing its economic strategies (at one point the possibility of a currency union between Australia and New Zealand was floated) probably does require one’s country to be at least partly in Europe, unlike the misnamed Eurovision Song Contest, which now includes Australia, Israel, and various Stans. 

Australian governance thus draws for its sustenance from a relatively uncontaminated stream of pre-Blair British constitutionalism blended with its own deep respect for popular sovereignty. It subordinates its technocrats always and everywhere to bodies “directly chosen by the people.” There is, in Christopher Caldwell’s terms, no “law that ate the Constitution.” This means the Executive government…executes.

The contrast with the UK is notable. Apart from talking right and governing left, Conservative PM David Cameron accepted Blair’s hiving off much of parliament’s power to unelected quangos, as did his Tory successors. “Quangos” is an Anglo-Australian term. Translated into American—and sometimes called, pejoratively, quasi-NGOs—quangos are akin to “non-departmental public bodies” or “government-sponsored enterprises or even “independent executive agencies.” The quangocracy is at the heart of Britain’s “Blob” and is a significant reason both Labour and Conservative governments struggle to do anything.

The travails of Shabana Mahmood—the UK’s decent and principled Lord Chancellor—are salutary on this point. 

The Sentencing Council is a quango, and in March it issued new guidance to magistrates and judges directing them to “normally consider” ordering a pre-sentence report on an offender if he or she came from “an ethnic minority, cultural minority, and/or faith minority community”. There were no requirements for similar reports on offenders of any other ethnicity or from the majority religion. The probation service draws up pre-sentence reports to provide courts with information that routinely mitigates at sentence, often avoiding custodial sentences for offenders. 

Having shown willingness to take on her own religion for its sectarianism and sexism at the 2024 general election, Mahmood then accepted that the guidance amounted to two-tier justice and so worked up legislation to prevent it coming into force. Incredibly, the Sentencing Council itself—so puffed up with unearned parliamentary power—planned no change to its guidance until confronted with a cabinet minister standing athwart it and yelling STOP: 

These guidelines create a justice system where outcomes could be influenced by race, culture or religion. This differential treatment is unacceptable—equality before the law is the backbone of public confidence in our justice system. I will change the law to ensure fairness for all in our courts.

Only after an exposure draft of the proposed legislation was released did the quango back down. It conceded to Mahmood it could not introduce guidance that would be unlawful in under two months. “On that basis, the Council, an independent statutory body, has chosen to delay the in-force date of the guideline pending such legislation taking effect,” its statement said. 

Big of it, I know. 

That is nothing more and nothing less than an unelected body purporting to bypass Parliament and Cabinet and enact legislation of its own motion. And remember, this is something that happens routinely in these Islands and was only stopped here because people across the political spectrum noticed what was going on and made a fuss. The thing is, Labour could abolish the Sentencing Council and thereby return power to its (rightly) annoyed cabinet minister, but that would involve repudiating Blairite technocracy and government-by-expert. That would involve making parliament truly sovereign—and ministers truly responsible—once more.

Perhaps it’s as well Australia finally and irrevocably left its UK parliamentary home in 1986. It took the best of British constitutionalism and then did something interesting with it. Americans, of course, would say the same thing about 1776.