Deakin and the centralising tendency.(The Constitution)(Alfred Deakin)(Viewpoint essay)

IT HAS BECOME NORMAL, after any decision of the High Court affirming yet another claim by the Commonwealth that it possesses a heretofore unrecognised legislative power, for commentators, and even some High Court judges, to complain that this was not the kind of federalism that the "founding fathers" intended. But as some members of the High Court have frequently pointed out, the intentions of the founding fathers were not homogeneous; the Constitution had many fathers and who knows what any of them really intended. However, if we do pick one of the founding fathers, Alfred Deakin, then there is enough evidence to demonstrate that he, at least, would have approved of the High Court's most recent affirmation in the WorkChoices Case--although he wisely kept the breadth of his centralising vision quiet at the time.

The centralising tendency that has been powerfully evident in decisions of the High Court ever since the Engineers' Case (1920) has been the inevitable--and planned--result of the form in which the Constitution was drafted, the inclusion within it of Chapter III, the enactment in 1903 of the Judiciary Act, as well as the choice, in 1906, by the Prime Minister, Alfred Deakin, of Isaac Isaacs to be the fourth Justice of the High Court.

It is a remarkable phenomenon that the bickering colonies were able to agree at all to establish the Constitutional Conventions; and the more so that they were then able to select as delegates men who were, almost all of them, federalist in tendency. That is not to say that parochial interests had been altruistically abandoned for, even as late as 1900, when the Australian delegation arrived in London to shepherd the Commonwealth Bill into law, severe differences, concerning the maintenance of appeals to the Privy Council, continued to threaten federation.

Nevertheless, those who would later become principals in the new Commonwealth government were firm in their view that Australia's best future lay with a powerful central government and not one that was a mere delegate of the states. Foremost of these was Alfred Deakin, who became known as Victoria's "federal leader". A popular figure and a great public speaker, he would become Australia's first Attorney-General and its second Prime Minister. Another was Isaac Isaacs KC. A didactic, scholarly and meticulous--some would have said pedantic--participant at the 1897 and 1898 Conventions, he proved so unpopular that despite his acknowledged skill and talent, he was excluded from the drafting committee which settled the final draft of the Constitution for consideration by the Conventions.

That final draft, moulded over the course of the Conventions, was one which Deakin, as Commonwealth Attorney-General, later described as having been:

 
   drawn, and inevitably so, on large and simple lines, 
   and its provisions were embodied in general 
   language, because it was felt to be an instrument 
   not to be lightly altered, and indeed incapable of 
   being readily altered; and, at the same time, was 
   designed to remain in force for more years than 
   any of us can foretell, and to apply under 
   circumstances probably differing most widely from 
   the expectations now cherished by any of us. 
   Consequently, drawn as it of necessity was on 
   simple and large lines, it opens an immense field 
   for exact definition and interpretation. 

It cannot be thought that a Constitution of that kind, which Deakin also described as "necessarily precise in part, as well as vague in other parts", was drawn in order to preserve some form of status quo under which the states would, subject to a partial cession of powers, and only concurrently with their continuing possession of some of those powers, continue to enjoy full power as before. On the contrary, as the London Morning Post's anonymous Melbourne correspondent (who was actually Deakin himself) wrote on April 1, 1902, the terms in which the Constitution was drafted were calculated to shift power, decisively and permanently: