Shaping Nations: Constitutionalism and Society in Australia and Canada

1. "The Blizzard and Oz": Canadian Influences on the Australian Constitution Then and Now

1 "The Blizzard and Oz": Canadian Influences onthe AustralianConstitution Then and Now1 JOHN WILLIAMS Introduction With typical rhetorical flourish Lord Denning noted that it was "bluebell time in Kent" before he addressed himself to the quantum of damages occasioned by a nervous shock.2 The time of the season, as the title ofthis chapter suggests,maybe one other reason why Canadians and Australians are drawn to investigate our respective approaches to public policies.Asthenorthern winter descends,Australia, reclining in summer, must appear to be an inviting research topic. This chapter investigates the points of convergence and divergence between Canadian and Australianconstitutional law. There is something both appropriate and absurd about the comparison of Australia's and Canada's constitutional and political history. Clearly we share the historical link of English common law, a federal system of government and a desire to be more than just "A New Britanniain Another World!"3 Yet it is the divergence from this common heritage, as the very different environments took hold of the transplanted specimen, that is the critical factor.4 Itis,as Manning Clark often noted when discussingAustralia, the "spirit of place" that is perhaps the deceptive agent in this mix.5 This "spirit" can be seen in the law as well as in the way in which our respective cultures portray themselves. There is something quintessentially Australian about the Heidelberg School of Australian 6 SHAPING NATIONS landscape. So too, The Group of Seven is one expression of a Canadian understanding of itself. In the Beginning The drafting ofthe Australian Constitution was more a process than an event. The decade of the 1890s is marked by various conventions and conferences that debated and refined the draft Constitution. Running parallel with, and critical to, this process was information gathering and discussion by the various Federation Leagues and Associations. This process was Australia's first sustained attempt at comparative constitutional research. Once a federal system was determined to be the basis for the union of the colonies, the Canadian, American, German and Swiss constitutions were obvious starting points. RichardChaffey Baker, for instance, in his Manual for the delegates to the 1891 Sydney Convention, drew upon the federal constitutions of America, Canada, Switzerland and South Africa.6 The question of the use of Canadian precedents raised itself on the first day of the 1890 Melbourne Conference. It was not, however, the "watertight"compartmentsofthe federal structure,7 but the leakageof the proceedings into the pages of the press and public that concerned the delegates. As Thomas Playford, the South Australiandelegate, noted: Without disapproving of the admission of the Press, we have no precedent for it in Conferences, either in the Colonies or in America. The Americans never admitted the Press when they made their Constitution; the Canadians at Quebec did not admit the Press; and you cannot point out, Ibelieve, one single precedent for admitting the Press to deliberations of this sort.8 While the issues were resolved with the admission ofboth the Press and the public, a point that underscores the democratic nature of the convention process, it was by no means the only use of Canadian precedents.9 At the 1890Melbourne Conference the BritishNorth America Act, was on the agenda. Sir Samuel Griffith, the future Chief Justice of the High Court, spoke in glowing terms of that federation: "THE BLIZZARD AND OZ" 7 I would like to trespass on the time of members of the Conference for a few moments for the purpose of mentioning some of the subjects which are enumerated in that great Actof British North America. I have before me a list of the subjects which are the exclusive business of the general legislature. Thesesubjects include thefollowing:-PublicDebt and Property, Regulation of Trade and Commerce, Raising of Money by Taxation, Borrowing of Money on Public Credit, Postal Services, Census and Statistics, Militia, Military and Naval Forces, Defence, Beacons, Lighthouses, Navigation and Shipping,Quarantine,Ferries betweenProvinces, Currency and Coinage, Banking and Paper Money, Weights and Measures, Bills of Exchange and Promissory Notes, Interest, Bankruptcy and Insolvency, Patents, Copyrights, Naturalization and Alienage, Marriage and Divorce, and Criminal Law.10 Griffith's attraction to the British North America Act had been demonstrated a few months before in the mire that was Queensland politics at the time. In April 1890, Griffith, supporting Mcllwraith, overthrew the Morehead ministry tobecome Queensland premier for the second time. The persistent claims for northern separation were an issue that...