Chapter XIX: Comparison with the Constitutions of the United States and Canada

Before I make some general reflections on the character of this Australian Constitution, it is worth while to note summarily the principal points in which it differs from the two other Federal Constitutions which it most resembles.

The provisions which it has borrowed from the American Constitution have been already adverted to. It differs from that Constitution in the following (among other) respects:—

1. It is a longer instrument, going into much fuller detail on many topics.

2. It leaves less power to the States and gives more power to the Commonwealth; and it enables the Commonwealth Parliament to legislate for a State upon the State’s request, a thing which lies quite outside the functions of Congress.

3. It does not establish a complete system of Federal Courts covering the whole area of the Commonwealth, but allows State Courts to be invested with Federal jurisdiction.

4. It makes the Federal High Court a Court of appeal from State Courts, whereas in the United States each State Supreme Court is final in its proper sphere.

5. It contains hardly any restrictions, in the nature of a ‘Bill of Rights,’ upon the power of the Federal Legislature over the individual citizen.

6. Instead of disjoining Legislature and Executive, it unites them closely by the system of Responsible or Cabinet Government, and so far from excluding every official from Congress, it makes a seat in Parliament a condition of Ministerial office.

7. It vests the choice of the Head of the Executive, not in the people, but in an external authority, the British Crown. To be sure, this Head is nominal and not responsible either to the people or to the legislature.

8. It vests the election of Senators in the people, not in State Legislatures, gives the Senate no power of amending but only of suggesting amendments in money bills, makes the Senate dissoluble in case of a deadlock between it and the House, and contemplates the possibility that new States may have a smaller representation in the Senate than original States.

9. It gives to the Executive no such veto on legislation as the President has in the United States. I have already explained that the veto of the Governor-General and the Crown is a different thing, and rarely employed.

10. It makes the amendment of the Constitution a much less tedious and difficult process.

Thus it may be said that, as compared with the American Constitution, it vests more power in the National Government as against the State Governments, and that, as between the various departments of the National Government itself, it concentrates power more fully in the hands of the Legislature and imposes fewer restrictions upon its action.

The Constitution of Canada seems at first sight nearer to that of Australia than does the American. It has a Monarch, represented by a Governor-General, for the head of its Executive. It contemplates a number of States small when compared with the forty-five of the American Union. It has adopted the British system of Cabinet or responsible Government.

But the differences are really so considerable as to place Australia’s scheme as far from that of her colonial sister as from the American. Among them are the following:—

1. The Canadian Constitution prescribes the Constitutions of the several Provinces, though it permits the Provincial legislatures to alter them (subject to a Federal veto). The Australian assumes its State Constitutions as existing, and makes no change in them, except so far as the Federation controls or supersedes them. Hence the antecedent power of changing them remains, so far as they are not affected by the Federal Constitution.

2. Australia leaves to the States all residuary powers (_i.e._ powers not expressly granted). Canada withholds them from the Provinces and vests them in the Dominion.

3. Australia leaves the State Governors to be appointed, as now, by the Home Government, apart from Federal interference. Canada gives the appointment of them to the Federal Ministry. And whereas in Canada a Provincial Governor cannot communicate directly with home but only with the Governor-General, in Australia the State Governor and his Ministers are in direct touch with the British Government in London.

4. Australia gives to the Federal Government no right whatever to interfere with State Statutes. Canada invests the Dominion Government with a veto on Provincial legislation by placing the Governor-General as regards such legislation in the place which the Queen holds as regards Dominion legislation.

5. Australia distinguishes Federal from State jurisdiction, taking power to establish Federal Courts other than her High Court, and to invest State Courts with Federal jurisdiction. Canada has no special Federal Courts other than the Supreme Court of the Dominion.

6. Australia makes her Senate an elective assembly. In Canada the Senate is nominated by the Dominion Government, and is therefore a weak body, quite unfit to try conclusions with the House which has the people behind it.

7. Australia provides a method whereby the Commonwealth may amend its Constitution. Canada has no such method, and thereby leaves amendment to the Imperial Parliament of the United Kingdom.

This comparison shows that the Australian scheme of Federal Government stands intermediate between that of the United States and that of Canada. In the United States, the Federal Government has less power as against the States than in Australia. In Canada, the Federal Government has more power, or at least a wider range of action. In other words, the Australian system approaches nearer, in point of form, to a Unitary Government than does the United States, but not so near as does Canada. I am speaking merely of form, that is, of the institutions as they stand on paper, for it does not necessarily follow that the spirit in which institutions are worked will precisely correspond to their form. The old Romano-Germanic Empire, for instance (1638-1806), was less unitary in practice than would have been collected from its form; the new German Empire (since 1871) is more unitary in spirit and working than its form would necessarily convey.