FEDERATION--100 YEARS AND MORE.(Australia)

THE CENTENARY of the Australian federation has been the cause of much justifiable celebration. It is after all still a rare event for any country to be able to complete a successful century of liberal democracy and internal peace, especially in a century which has seen the worst examples of war, totalitarianism and mass murder in human history. At the same time and very largely for these reasons it has seen the development of universal concepts of human rights and liberty which, despite their occasional abuse for the purposes of particular social groups, are in principle fundamental to a democratic global order.

Federation in Australia was a genuine declaration of independence from Britain, despite a great deal of contemporary nonsense about republicanism and the lack of an Australian head of state. The Australian constitution was not entirely to the liking of the London authorities, and the constitution which was adopted by a vote of the people of the Australian colonies (everybody of course agrees that it would have been better if all adult women had been enfranchised and all adult Aborigines had been encouraged to vote--but that is like saying that it would have been better if we had run our history backwards, applying principles which only gradually evolved before they had evolved) despite its verbal concessions to the power of the monarch was clearly designed to express the popular will within a framework of principle.

Democratic parliamentary sovereignty was clearly established in our constitution before the power of the House of Lords was broken in Westminster. Rather than adopting a revolutionary approach, the development of Australian independence was permitted in the framework of the constitution and was gradually asserted over the century. The wisdom of the constitution makers was that they were prepared to provide for such development rather than insist on an instant, and unstable, maximalism.

Moreover, there were many in the Australian community who agreed with London in considering Australia still a dependency of the UK (while it is often thrown up against Menzies that he committed Australia to following Britain to war in 1939 as a matter of course, the same was done by Labor Prime Minister Andrew Fisher in 1914); it was better that popular nationalist feeling should evolve and increase gradually rather than as a constitutional coup. The very peacefulness of Australian political life, despite the inevitable warts and distortions of the system, has resulted from this. The same is true of the effect of the mechanism of amending the constitution provided in section 128, which made it very clear from the beginning that amendments to it were in the hands of the people--and the people has frequently reasserted its supremacy in refusing to amend the constitution to suit some contemporary political fashion or other.

This has not stopped the constitution evolving--several devices have been discovered for subverting the popular will, from judicial creativity in the interpretation of the fundamental document to the extension of the external affairs power such that it can now be used to bring about legislation by fiat through the signing of international treaties and conventions, as well as greatly extending the powers of the Commonwealth. As has been remarked, the trend in interpretation of the external affairs power is such that section 51 of the constitution might now have all the placita deleted and could just as well be read as giving the Commonwealth power to legislatively overrule the states on anything. This is an exaggeration, but it is true that the only limits on the powers of the Commonwealth in its use of the external affairs power are those imposed by the High Court.

What has been described as the "long coup d'etat" of the High Court is one of the central features of the century of federation. When the constitution was written there was no question of strict separation of powers either in the Westminster system or in Australia. All the Australian states, like Britain, had judges appointed by the executive who could exercise both judicial and executive functions. This is not just implicit in the Australian constitution, butt is made explicit in section 101, which is worth quoting in full: There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this constitution relating to trade and commerce and all laws made thereunder.

This section has been interpreted out of existence by the High Court, which on its own account and in direct contravention of the words of the constitution has insisted that the judicial power and the executive power cannot be intermixed or endowed upon a single institution. This was the first great act of judicial adventurism and undemocratic constitutional amendment in contravention of section 128 by the court, and culminated in the Boilermakers Case of 1956. It is now treated as one of the most firmly established principles of Australian constitutional law, and it would be quixotic to hope that anything could be done about it--but it is the High Court's Original Sin, and should not be forgotten. Indeed the doctrine of separation of powers has been widely misunderstood in this country.