FOR AND AGAINST: Different Views
Extra Document 3

On the grounds of constitution

AN INDISSOLUBLE CONSTITUTION

...You have never had so momentous a political question to face before. It is proposed that you shall bind, under an "indissoluble constitution," your children and your children's children for all generations. If you once come under this bill, you and your descendants must stay under it. Marriage is a big, a grave undertaking but it can at least be dissolved by the death of one of the parties. This constitution cannot be dissolved by the death of any person, or of any number of persons. This is not like an ordinary Act of Parliament which Parliament can change if it do not work well …

Not a section, not a phrase, not a word in this constitution can be changed by the Federal Parliament, no matter how urgently the change may be required, and even though every member in each House of the Parliament may vote for the change …

… Our Victorian Parliament has power, under an Act of the Imperial Parliament, to change any part of our Victorian constitution. Some parts may be changed by an ordinary majority in both houses; other parts cannot be changed except by an absolute majority in both houses; but any part can be changed. Now we know by experience how hard it is to get a change of our constitution even with these facilities. But the difficulty will be far greater in getting a change in the Federal Constitution. So that it is no wonder if some of us do not throw up our hats in the air at once, and shout for this bill, as the crowd shouts for a goal at a football match. It is no wonder that some of us do not come before you with oratorical effusions about the glories of union among Australians, and the narrowness and pettiness of those who venture to criticise this bill. Oratory is an excellent thing in a good cause; but we must steel ourselves against its seductive power in a matter which needs so much deliberation in the interests of our common country. Here is my next proposition:

To make a change in a single word in this constitution, there must not only be an absolute majority of both houses of the Federal Parliament; but the change has to be submitted to the electors in the several colonies; and unless there be a majority of the people, and also a majority of the States in favour of the change, the change cannot be made. Even if four out of every five Australians voting vote for the change, the change is not necessarily carried.

Take these figures which are quite possible: Suppose a change in the constitution proposed, as to which the great bulk of the large populations of New South Wales and Victoria are agreed, but as to which opinion is nearly equally divided in the other three colonies. Of course, I am taking the differences in population as they stand at present; but the differences in population will probably be greater hereafter. Assume that you have overcome the difficulty of getting an absolute majority of the two Houses in favour of the change. Then suppose that in New South Wales 100,000 vote for the change and 10,000 against; suppose that in Victoria 90,000 vote for the change and 10,000 against; suppose that in South Australia 14,000 vote for the change and 15,000 against; suppose that in Tasmania 6000 vote for the change and 7000 against; suppose that in West Australia 6000 vote for the change and 7000 against. Then you have 216,000 electors voting for the change, and 49,000 voting against it. That is to say, you have more than 4 to 1 in favour of the change. Yet that change cannot be made. Public opinion is thwarted. After the prolonged discussion which must have taken place before such a stage could be reached, the will of the great mass of the Australian people cannot be carried into effect. And the Australian people have no remedy, for they have, in the words of the preamble, "agreed to unite in one indissoluble federal commonwealth … under the constitution hereby established." The constitution binds them as by a contract, and the British Parliament will have to let the Australian people lie in the bed which they have made for themselves.

But I have not yet told you the worst. There are some provisions of this bill which cannot be altered at all, even though all these conditions, the difficult conditions to which I have referred, should be fulfilled. When you get a copy of the bill, look at the last clause of the last section, and weigh it well. Any layman can understand as well as any lawyer the point to which I am going to refer. An alteration diminishing the proportionate representation of any State in either house of the Parliament is not to become law unless the majority of the electors voting in that State approve the proposed law. This clause is difficult and obscure in its application to the House of Representatives, but it is clear as to the Senate. To take a possible case: If New South Wales should hereafter have 20,000,000 people, and Tasmania 200,000, Tasmania must continue to have the same number of members in in [sic] the Senate as New South Wales, unless Tasmania consent to have the number reduced. Under this Bill we are to start with six Senators for each colony, no matter what the population. You may, in other words, have 100 people in New South Wales for every one in Tasmania; and yet Tasmania is to have the same influence in one of the houses as New South Wales; one person in Tasmania is to have as much influence on that house as 100 persons in New South Wales. We cannot alter this precious arrangement unless Tasmania consent. You might as well say we cannot alter it at all. If the sky fall we shall catch larks; and if Tasmania consent you may reduce her power in the Senate.

Now, I should personally be willing to accept a worse constitution than this is in other matters, if there were reserved for the future people of Australia reasonable facilities, after full deliberation, to change the constitution where it proves to be defective or unsuitable. Sir George Turner has, the other day, put before the public a number of points on which he regards the bill as defective and injurious. Well, even if, as he estimates, the Victorian Treasurer may have to find some £500,000 a year more, for some years to come, to compensate him for the loss of sugar duties and other intercolonial duties, and to meet Victoria's share of the extra expenditure of the Commonwealth, that would not be too high a price to pay for a good system of Federation. The inconveniences felt during some years of transition will be as nothing compared with the advantages of Australian union. So strongly do I feel impressed with the value of a federal union that I should not dream of voting against this bill for the reasons which operate on Sir George Turner – if we only trusted the free people of Australia to do justly hereafter, to make such changes as they may find to be necessary, to be, in fact, as wise and as fair as ourselves. But no – that will not suit our wiseacres. We know better what will suit the people of the after-time than they can know themselves. I say nothing – nothing – nothing should be made so rigid, so absolutely unchangeable. You must have the ultimate sovereignty somewhere. I may put out of account the British Parliament, which will not, cannot constitutionally, interfere with our internal Australian arrangements, especially when they are the result of a solemn agreement and compact. I say that subject to the theoretical sovereignty of the British Parliament, the practical sovereignty in our Australian affairs ought to rest with the Australian people. As this bill stands, we are depositing the sovereignty in a parchment document, which cannot be moved by prayers, or swayed by reason, or impelled by force. I ask you are the Australian people (in the words of Shakespeare) to be thus

"bound in with shame,
With inky blots and rotten parchment bonds?"

Henry Bournes Higgins, Essays and Addresses on The Australian Commonwealth Bill, Melbourne, 1900, pp. 6-9. (This is an extract from a speech delivered at Geelong on 18 April 1898.) Cited in Scott Bennett (ed.), Federation, Cassell Australia, North Melbourne, 1975, pp. 90-2.