A Positive Constitutionalism

In classical liberal conceptions, the role of the state is perceived narrowly as restricted to the spheres of ‘defence, security, criminal law and public order’.^{Footnote 24} The era in which the sphere of state action could be so narrowly conceived has long passed. Yet, it seems that doubt has always persisted as to whether an active state, which is necessary for the adequate provision of positive or post-liberal rights, is constitutional. If constitutionalism is understood purely in terms of limits or constraints upon the power of government, this can mean that these other, necessary, facets of the role of the state in helping to secure rights and wellbeing are obscured.

Jeremy Waldron has gone so far as to suggest that the concept of constitutionalism has been harnessed towards the de-legitimation of ‘the aspirations of government — particularly democratic government’.^{Footnote 25} It is perhaps not a coincidence that narrowly defined liberal constitutionalism has not proven particularly effective at preventing the depreciation of state capacity in many countries, nor rising material inequality.^{Footnote 26} Waldron’s critique is aimed at the way in which overemphasising the need to limit government ultimately serves certain political ends — that is, the bringing about (or restoration of) a laissez-faire approach to regulation.

Barber contended that the notion of constitutionalism might be ‘rehabilitated’ if it proceeded from a sounder account of the state, one which encompassed ‘the (moral) reasons we have for wanting the state’.^{Footnote 27} What he describes as the principles of ‘positive’ constitutionalism ‘are directed towards ensuring that the state possesses an institutional structure that has the capacity to effectively enhance the wellbeing of its members’.^{Footnote 28} These include a robust civil society,^{Footnote 29} and an understanding of the rule of law that makes room for state action.^{Footnote 30} A separate, but I think related, set of ideas are those connected with the provision of effective government. These recognise that constitutionalism has ‘two faces’ — it must be both ‘power limiting’ and ‘power generating’.^{Footnote 31} On this framing, ‘constitutionalism is minimally necessary, but not sufficient for effective democratic governance’.^{Footnote 32} The point of agreement here is that limits upon power alone are not enough to produce the conditions in which liberal democracy can function, let alone flourish.

Adrienne Stone and Lael Weis have identified that Barber’s articulation of the concept of positive constitutionalism contains both ‘stronger’ and ‘weaker’ forms.^{Footnote 33} In terms of the ‘weak’ form, they understand Barber’s claim to be that theorists should ‘reorient their inquiries away from negative constitutionalism’ and towards ‘the view that the animating purpose of constitutions lies in making the state’s exercise of political power effective’.^{Footnote 34} They ‘are not convinced’ that this purpose has been overlooked in many accounts of constitutionalism.^{Footnote 35} While the material they assemble on this point is persuasive, it is still the case that in some traditions the notion that an active state is antithetical to the rule of law itself runs very deep.^{Footnote 36} In terms of Barber’s ‘strong’ form, Stone and Weis considered that this is a claim that, for the state of ‘constitutionalism’ to be achieved, ‘the institutional arrangements for exercise of political power’ must be adapted to the ‘pursuit of wellbeing’.^{Footnote 37} They distinguished this from Waldron’s approach, which they noted is ‘a sceptical argument directed at the value of constitutionalism itself’.^{Footnote 38}

The role of constitutions in structuring and enabling effective government has not been the focus of much constitutional law scholarship in recent decades.^{Footnote 39} The need for the government to take collective action to safeguard and advance social and individual wellbeing is likewise something that has faded out of scholarly focus. Indeed, on some views, liberal constitutionalism has never adequately taken this into account.^{Footnote 40} One consequence is that due regard has not been paid to the ways in which the state itself, and its institutions, can make a critical contribution to sustaining civil society and checking outsized material inequality; in other words, to the maintenance of the conditions in which liberal democracy can be sustained. The question of the extent to which the adequate provision of positive rights might in fact help to secure the conditions needed to ensure that government acts within appropriate limits requires further attention. To draw on the examples given by Law, it may not be possible to seek to secure your liberal rights if your energy is, of necessity, directed entirely towards first-order problems.

B The Australian Constitution — Why ‘Positive’?

It is not the aim of this paper to contribute to normative debates about what is needed to achieve the state of ‘constitutionalism’ or Barber’s specific theory of it. Consideration of such debates is nevertheless useful here, because it helps to illustrate that thinking upon the topic of constitutionalism takes a range of forms. Theories or ideas regarding constitutionalism are not readily separated from those regarding constitutional form itself. Such theories may, for instance, aim to provide ideals or guidance as to the form a constitution should take to best achieve a state of constitutionalism. They may also help to develop a clearer appreciation of forms that constitutions might already take, as well as the manner of their function.

There has been a reflexive tendency to equate the form and function of Australian institutions, including parliaments and courts, with those of the United Kingdom. The constitutional theory of A V Dicey has often been treated as influential upon the way the Australian Constitution has been understood. While this is undoubtedly one part of the picture, it should not be allowed to obscure other compelling considerations. One legacy of the influence of Dicey is a tendency to cast constitutionalism into competing archetypes of ‘political’ and ‘legal’ constitutionalism.

Political constitutionalism can be defined as a form of constitutionalism within which the legislature has the primary power. The classic model of political constitutionalism is often thought to be the English constitution in which, traditionally at least, Parliament has been regarded as supreme, with the courts unable to defy its legislative commands.^{Footnote 41} This means that the legislature, or Parliament, is free to enact any laws it chooses, including those that infringe upon rights and liberties. The check in this system is usually presumed to be a political one: within the legislature, contestation and debate is assumed to structure and constrain legislative norms affecting constitutional norms. And if legislatures overreach, this, in theory, can be corrected at the ballot box.

Legal constitutionalism, on the other hand, is a form of constitutionalism in which the courts have more power to constrain the actions of Parliament. The basis for legal constitutionalism is generally understood to be a set of written, judicially enforceable constitutional norms. Legal constitutionalism tends to be associated with better protection for individual rights, but also greater questions about the democratic legitimacy of constitutional rights protection. Judicial enforcement may also be complemented by enforcement by a range of other independent ‘guarantor’ or ‘fourth branch’ institutions. But here things can start to get murky. If these institutions have a statutory basis and a public oversight function, they may also be considered to fall under the rubric of political rather than legal constitutionalism.

As Barber has suggested, ‘[p]olitical and Common Law [or legal] constitutionalists sometimes give the impression that their theories exist in separate, sealed, categories, but a more plausible reading of their work would place them on a spectrum’.^{Footnote 42} In reality, a range of checks and balances derived from both paradigms are necessary. However, checks and balances on power and its use cannot guarantee a healthy polity without something more. For instance, in theories of legal constitutionalism emphasis is often placed primarily upon the protection of individual or liberal rights. Absent adequate focus on how social rights can be materially protected, such approaches appear to lack the capacity to address rising economic inequality.^{Footnote 43} Further, social rights are often collective or relational. Protecting the rights of one individual will not, without something further, correct structural abuses of such rights. Structural or institutional interventions are required.

Thinking about political and legal constitutionalism in binary terms poses the risk flagged by Waldron. Since state action might be difficult to control either politically or specifically by the courts, it is perceived to be illegitimate, or unconstitutional. This in turn can lead to the kind of oversight, already referred to, regarding the critical contribution made to constitutional function by an ethical, adequately resourced, and effectively administered state. It also overlooks the contribution made by legislation itself in terms of structuring the exercise of power and enabling it to be held to account. This extends to the contribution made by the courts to the function of legislation through the application of the principles of judicial review of administrative action.

The Australian Constitution is regarded as a hybrid of legal and political constitutionalism.^{Footnote 44} This is not incorrect, but it does not fully capture its character. An additional complicating factor arising in connection with the use of Dicey as a key point of reference for understanding the Australian Constitution is that his theory epitomises the ‘negative’ constitutionalism described by Barber. Dicey preferred to conceive of the state and its power in limited terms. He seemed dubious of the state taking on what he described as a ‘mass of public business’, such as ‘public education’.^{Footnote 45} The more expansive the role of the state became, the more discretion would be needed by the administrative branch of the state, which would contribute, in his perception, to the erosion of the rule of law.^{Footnote 46} This is one reason why Dicey was driven to deny the role of administrative law in the English Constitution.^{Footnote 47} Further, while Dicey theorised about parliamentary supremacy, ‘[p]arliamentary government does not…necessarily mean democratic government’.^{Footnote 48} In the introduction to the last edition of his work published in his lifetime, he attributed what he perceived to be a ‘decline in reverence for the rule of law’ to a rising tide of ‘[d]emocratic sentiment’.^{Footnote 49}

Stone and Weis identified that the Australian Constitution, like Canada’s, is ‘positive’ in the sense that both ‘permit some state interventions precisely because they advance the form of well-being to which the state is directed’.^{Footnote 50} As Stone has noted, all constitutions necessarily have a positive dimension.^{Footnote 51} To understand the specific character of the positive dimension of the Australian Constitution, it is useful to have regard to the ideas that influenced its development.^{Footnote 52} These can help to illustrate that there was a broad understanding, during relevant periods of constitutional and institutional development, that something more than formal legal limits on government power was required to enable a state to function effectively.

The framers of the Australian Constitution were influenced by the English Constitution, at least as they understood it through their own lens. They were also influenced by the Constitution of the United States. Yet, despite their ‘superficially old-world appearance’, Australian institutions have ‘a distinctively local character’^{Footnote 53} and their own unique forms and functions. This should be recognised as only partly, and not wholly, attributable to the federal structure of the Australian Constitution. There are facets of Australian history which provide important sources of potential guidance for understanding the shape and nature of the institutions built upon the foundations laid by the Constitution. This history perhaps also helps to shed light on aspects of constitutional design, function and interpretation.

The Constitution was developed in a political context where ideas regarding state intervention, radical elsewhere at the time, were mainstream enough to see their proponents comprise majorities in the early Australian Parliaments. This greater comfort with the notion of state power had already resulted in experimentation in terms of the most appropriate manner for its control.^{Footnote 54} As Gageler J observed, Ch II of the Constitution, which refers to the executive power of the Commonwealth, ‘was framed against’ this ‘political and practical background’, not only of interventionist government, but also experimentation as to the best means for its control.^{Footnote 55} Attention to this background might be illuminating in a range of ways.

The next part sets out some of the ideas that were current in Australia at the relevant time. This part demonstrates that there was, at least in some influential circles, an embrace of what might now be understood as positive liberty. The concept of positive constitutionalism might provide a useful starting point for a more complete understanding of the Australian constitutional tradition. In the political context of the time, it was recognised that while government action should not be arbitrary, the sole purpose of a constitution was not to limit power.

The positive dimension of the Australian Constitution is not derived only from recognition that it was the purpose of a constitution to enable the exercise of power. It was clearly recognised from the time of Federation that legislation, and institutions created by Parliament, were needed to support constitutional function. One feature of the Australian tradition is that it was understood, implicitly, that legislation could play a role in structuring (and limiting) the exercise of power. This extends to not only the power of the state, but also the power of the people themselves. Fin de siècle ideas regarding an active state, responsible to active citizens require consideration. Such ideas have likely shaped not only conceptions of the appropriate function of institutions, but also of how the power of government should be both exercised, and limited, within the Australian Constitution.

A ‘Social’ Liberalism

Liberalism underwent a series of evolutions during the 19^th century, as theorists from Bentham to Mill attempted to grapple with the challenges thrown up by economic and social disruption. Some began to theorise that true freedom could not be achieved without some form of collective action, or intervention by the state.

In contrast with a laissez-faire notion of liberalism (like the one embraced by Dicey), such conceptions of liberalism were predicated upon notions of liberty that had a much more ‘positive’ dimension. Instead of merely keeping the peace and preventing interference with private rights, social liberals believed that the state had a role in ensuring that individuals were able to lead fulfilling lives. This went beyond the maximisation of happiness found in the work of Bentham. It had a focus on the ‘common good’, in which individuals should not simply seek to maximise happiness or pleasure. Rather, they should aim to do what was right for themselves and their communities. This thinking was still concerned with individual liberty, but it encompassed an understanding of the way in which attainment of this was determined by surrounding circumstances, including the social.

Perhaps the leading thinker of this style of liberalism was T H Green. Green is recognised as the ‘key figure in reorienting nineteenth century liberalism from utilitarianism to idealism and from a negative to a positive definition of liberty’.^{Footnote 61} He was influential in the development of the movement that is sometimes referred to as ‘new liberalism’ or ‘idealism’ in the United Kingdom.^{Footnote 62} Liberal idealists rejected the individualism of utilitarianism, which they perceived as largely hedonistic.^{Footnote 63} The philosophy of Green and other ‘idealists’ had a moral core located in religion.^{Footnote 64} Green’s lectures contain reference to what he described as ‘self-realisation’ — he considered that a ‘reconciliation between will and reason’ was necessary for ‘moral progress’,^{Footnote 65} and ‘the condition of a moral life [was] the possession of will and reason’.^{Footnote 66} In turn, ‘the value…of the institutions of civil life lies in their operation as giving reality to these capacities’, because they enabled the individual to act ‘as a member of a social organisation which contributes to the better-being of all the rest’.^{Footnote 67}

Green thought that the role of the state went beyond merely securing the liberty of the individual from ‘violent interference’, contending that ‘[t]he real function of government’ was ‘to maintain conditions of life in which morality shall be possible’.^{Footnote 68} He argued that rights pertained to individuals but were essentially relational — they did not exist ‘apart from society’^{Footnote 69} or ‘against society’.^{Footnote 70} He claimed that ‘[t]here can be no right without a consciousness of common interest on the part of members of a society’.^{Footnote 71} It was thus the role of the state to promote the common good, although Green accepted that there were divergent notions of what this might comprise.^{Footnote 72}

Social liberals believed that the task of ensuring that government remained focussed on the common good and not captured by private interests fell to citizens themselves. Positive liberty was seen as contingent upon active citizenship. In a lecture entitled ‘Will, Not Force, Is the Basis of the State’, Green wrote that an individual could not just be ‘a passive recipient of protection in the exercise of his rights of person and property’. Rather ‘to have a higher feeling of political duty, he must take part in the work of the state’, for instance, at a minimum, by voting.^{Footnote 73} This thinking therefore contained distinctive notions about ‘practical democracy’^{Footnote 74} and state action.

One of its key tenets was ‘that “real” freedom could not be realized without collective action on a significant scale’.^{Footnote 75} A further facet of 19^th century social liberalism was the emergence of a belief that ‘the democratic state could and should play a central role in providing its citizens with equal opportunity for self-development’.^{Footnote 76} For social liberals, it was the role of a liberal government to ensure that all citizens ‘had the opportunity for the full development of their potential’.^{Footnote 77} It was perceived that it was the role of the state to facilitate individual flourishing, for instance, by ensuring individuals had access to adequate food, housing and education.^{Footnote 78} This was ‘was premised on the interdependence of individuals and the role of the community (with the state as its collective agency) in achieving equal opportunities for all of its members’.^{Footnote 79} There was seen to be an ‘interdependence between community development and the development of human potential’.^{Footnote 80}

An ‘atomistic view of the individual and the promotion of individual rights at the expense of society’ was thus rejected.^{Footnote 81} For social liberals, ‘the function of law was to provide the conditions for the development of our capacities and powers towards the moral end of self-realization’.^{Footnote 82} To provide the conditions for self-development or self-realisation, the state was required to take on an expanded role. But one element of this obligation upon the state to provide ‘equal opportunity’ was that it was, in turn, the ‘duty [of individuals themselves] to contribute to community through active citizenship’.^{Footnote 83}

B ‘Maximising Democracy’

Before turning to a consideration of liberalism in Australia during the relevant period, it is helpful to set out some contemporaneous ideas regarding democracy. Much like ideas about the role of government and the desirability of social reform, notions about democracy that were radical elsewhere had also gained a firm foothold in pre-Federation Australia.^{Footnote 84} The field in which this is most immediately apparent is that of democratic innovation. Many democratic reforms were pioneered in Australia, ‘the first nation created through the ballot box’.^{Footnote 85}

A range of electoral reforms had been trialled in late 19^th century Australia. Experimental practices such as electoral rolls, provision of ballot papers by the state and secret ballots were adopted by self-governing colonies as early as the 1850s.^{Footnote 86} By the 1860s, property qualifications had largely been removed from suffrage for lower house elections for colonial parliaments in South Australia, Victoria, New South Wales and Queensland.^{Footnote 87} Women had been granted suffrage in South Australia in 1894, and by the Commonwealth and New South Wales in 1902; by 1909, all other states had followed suit.^{Footnote 88} According to Colin Hughes, a ‘commitment to maximising democracy’ was present from the time of achievement of self-government in the mid-19^th century.^{Footnote 89} This extended to the design of voting systems themselves, including the adoption of ground-breaking methods such as proportional voting.^{Footnote 90} For democratic reformers, this was a critical initiative to limit the risk of majoritarian tyranny and ensure that multiple perspectives were accommodated by the electoral process.^{Footnote 91}

It is important to note that many of these democratic reforms were (and remain) institutional and regulatory in character. This is, of itself, indicative of an acceptance of the state’s ability to contribute to reforms, and a belief in its capacity to do so. It also demonstrates a willingness to experiment with legislation as a form of structuring the exercise of power, including the democratic power of the people themselves. The political culture that began to emerge in the latter half of the 19^th century was not only ‘majoritarian’ but also ‘bureaucratic’.^{Footnote 92} This understanding of the importance of good and effective administration and regulation did not only extend to democratic process. This approach to voting took place in a context in which governments were both socially and economically interventionist. If the methods selected to realise this distinctive mode of democracy in Australia are looked at in context, they can be seen as part of a wider culture.

C Liberalism in Pre-Federation Australia: Active State, Active Citizens

The threads of liberalism in pre-Federation Australia defy ready categorisation.^{Footnote 93} Stuart Macintyre wrote that ‘[t]he liberalism of the self-governing colonies was shaped by the absence of familiar enemies’.^{Footnote 94} There was no ‘established church’ or ‘hereditary aristocracy’^{Footnote 95} meaning that liberalism ‘acquired a new energy’.^{Footnote 96} Further, ‘[l]ibertarianism is a minority, almost fugitive tradition’ in Australian political history.^{Footnote 97} Liberals in Australia ‘embraced a far wider role for the state than in Britain’.^{Footnote 98}

Colonial Australian governments had performed ‘activities that were without counterpart in Britain or which were conducted by local government, private enterprise or private and charitable organisations’.^{Footnote 99} Noel Butlin famously explained that there was a ‘common pattern of positive government intervention’ in a wide range of industries and activities, which was described at the time as ‘colonial socialism’.^{Footnote 100} The pre-Federation state in Australia provided infrastructure that was critical to economic development such as railways and telegraph lines.^{Footnote 101} The state also contributed to economic development through tariffs, as well as measures that sought to encourage foreign investment. Consequently ‘an active role for the state in development was seen as desirable by both capital and labour’.^{Footnote 102}

Each of these things contributed to conditions which encouraged a form of social liberalism to take a firm hold in the decades prior to Federation. The currency of ideas bearing the character of social liberalism appears to have even predated the work of Green, at least in some circles.^{Footnote 103} Support for such ideas was ‘strongest amongst the professional middle classes who parted company with classical liberals in their belief in a more extensive use of state power’.^{Footnote 104} Judith Brett’s ‘moral middle class’ was already a force in Australian politics long before Federation.^{Footnote 105}

Socially liberal notions were nevertheless influential across class divides.^{Footnote 106} Similarly to middle class liberals, ‘the leaders of the emergent Labor Party looked to the democratic nation-state as the means for achieving their objectives’.^{Footnote 107} Likewise, they ‘assumed that public institutions could provide the framework for a free, prosperous and contented people’.^{Footnote 108} Both sides of Australian politics traditionally embraced many forms of state action in a broad ideological consensus that lasted well into the twentieth century.^{Footnote 109} Still, ‘it is instructive to recognize the sense in which liberalism remained a hegemonic ideology’.^{Footnote 110} Doing so might go some way towards explaining what looked like ‘socialisme sans doctrine’ to the visiting French scholar Albert Métin.^{Footnote 111}

In contrast to the United States, where institutional development was influenced by theories of natural rights and limited government, in Australia it followed the advent of utilitarianism.^{Footnote 112} Hugh Collins claimed that ‘the mental universe of Australian politics is essentially Benthamite’ and that Australia becomes comprehensible to outside observers only if they regard it ‘as a Benthamite society’.^{Footnote 113} One reason for this, in the view of Collins, was that the state in colonial Australia ‘was inevitably a stronger, more intrusive, legitimately interventionist instrument than Victoria’s Britain’.^{Footnote 114}

Yet, to regard utilitarianism as the sole influence upon political development in Australia is to overlook the influence of social liberalism.^{Footnote 115} While utilitarian approaches were influential upon the ‘electoral and administrative innovation’ already described, by the 1890s, what was in the ascendancy was ‘an idealistic form of liberalism quite distinct from the materialism of Benthamite utilitarianism’.^{Footnote 116} As part 3.1 outlined, within the social liberal paradigm, ‘[l]iberty was not merely atomistic pursuit of pleasure and avoidance of pain’ as it was within a Benthamite construct, ‘but active citizenship and the pursuit of the common good’.^{Footnote 117} Further, the state was not regarded merely as ‘a vast public utility at the service of material happiness’, but ‘rather it had an ethical purpose: to provide equal opportunity for development of human capabilities’.^{Footnote 118}

It is possible to recognise the ways in which the notions about democracy sketched above were connected, at least in the minds of some, to ideas regarding the role of the state. Prominent liberal figures like George Higinbotham, an Attorney-General and later Chief Justice of Victoria, campaigned for reforms such as the state provision of measures designed to deliver social good, such as public education. At a public meeting in 1865 during a deadlock between the upper and lower houses of the Victorian Parliament over a protectionist tariff bill, he argued that:

The tone of this speech helps to demonstrate that the term ‘responsible government’ had democratic connotations at the time. Governments were to be responsible not only to parliaments but to the people themselves. Innovations regarding the administration of democracy, of the kind already referred to, would help to ensure this.

This meant that the people needed to be personally equipped to exercise their democratic duties. Progressive liberal reformers regarded public provision of education as a necessary element of universal suffrage and ‘democratic citizenship’.^{Footnote 120} The radical notions of democracy already outlined gave rise to expectations in terms of the need for citizens to be capable of self-government. Books were published for use in schools to educate students regarding ‘the laws they live under and the duties of a citizen’.^{Footnote 121} The term ‘self-government’ was regarded as having a ‘double meaning’.^{Footnote 122} As explained by Higinbotham in another public speech, ‘in proportion to a man’s self-control is his capacity to be entrusted with political power’.^{Footnote 123}

Some prominent figures had links, albeit indirect ones, to Green himself, having been taught by adherents to his philosophy before arriving in Australia.^{Footnote 124} They included the Reverend Charles Strong. His progressive beliefs led him to break with the Presbyterian Church in Victoria, where he established the ‘Australian Church’. This was ‘a free religious fellowship’ which ‘became a hub for social-liberal and feminist ideas’.^{Footnote 125} Amongst the associates of Strong were key figures in the politics of the time, including Higinbotham, but also Alfred Deakin, H B Higgins and the suffragists and social welfare activists Isabella and Vida Goldstein. Another with such a link was Francis Anderson, the first Challis professor of philosophy at the University of Sydney, and the leading ‘social-liberal philosopher in Australia’.^{Footnote 126} Anderson ‘followed Green in practising as well as preaching active citizenship while holding his chair’.^{Footnote 127} Amongst the many students taught by Anderson in his more than three decades at the University was H V Evatt, making him, in Sawer’s estimation, ‘a third-generation disciple of Green’.^{Footnote 128}

Whilst still a student, Evatt wrote a prizewinning essay on liberalism in Australia.^{Footnote 129} In this, he ‘described how the very concept of positive liberty and the ethical state came to displace the older contractarian forms of liberalism’.^{Footnote 130} He observed that ‘liberty without real equality was still a noble-sounding name, but often meant squalid results’ adding:

Preoccupation with the model citizen ideal encouraged some progressive liberals to pursue policies aimed at regulating personal behaviour, such as temperance.^{Footnote 132} As Macintyre explained ‘[i]n their willingness to interfere with the liberty of the individual’ to prevent the perceived social harms caused by alcohol, ‘the colonial liberals moved easily from the welfare of the individual to the welfare of society’.^{Footnote 133} By the 1880s, this strand of reformist zeal was ‘shading into wowserism’.^{Footnote 134}

Anxieties about ‘purity’ had a racist aspect, which helped to encourage support for not only the White Australia Policy, but also the destructive assimilationist practices adopted in the latter 19^th century.^{Footnote 135} Marilyn Lake has described ‘political equality’ and ‘racial exclusion’ as ‘twin ideals’.^{Footnote 136} The historian Stuart Macintyre wrote that the progressive liberalism of figures like Deakin sought to both ‘nurture a particular kind of social solidarity’ while also ‘safeguard[ing] the racial purity of the nation by the racially restrictive White Australia policy’.^{Footnote 137} Progressive nation building was constructed on a foundation of the ‘total denial of Indigenous history’.^{Footnote 138} ‘Equal opportunity’ was a goal of social liberalism, but its pursuit was limited and distorted by a profoundly discriminatory outlook. Lake observed that ‘[t]he capacity for and right to exercise self-government were conceptualized in racialized settler colonial terms’.^{Footnote 139} The Constitution bears the marks of this legacy, for instance, in the exclusionary conception of ‘the people’ which continues to be reflected in its terms.^{Footnote 140}

A Background to the Inclusion of s 51(xxxv) in the Constitution

There are some notable differences between the list of powers contained in section 51 of the Australian Constitution and that found in Article 1 of the United States Constitution. Some of these might be explained by the technological, economic and social change that occurred throughout the century that separates the drafting of both documents. For instance, section 51 refers specifically to 19^th century innovations such as railways and ‘[p]ostal, telegraphic, telephonic and other like services’.^{Footnote 158} The Commonwealth Parliament was given those powers thought to be required for national government. But the positive conception of the role of the state described in part 3 is also reflected in s 51.

The impression of this becomes stronger when regard is had to provisions such as s 51(xxiii), which states that the Commonwealth Parliament shall have power with respect to ‘invalid and old-age pensions’, a novel concept in the 1890s. It is intensified by s 51(xxxv), which refers to:

While the introduction of an aged pension in 1909 put Australia ‘at the cutting edge of some aspects of social insurance’,^{Footnote 159} the focus here is on s 51(xxxv), which was the product of a unique confluence of circumstances.

Stone has observed that one of the assumptions upon which the ‘small brown bird’ narrative of the Australian Constitution rests is to do with the moment of its founding.^{Footnote 160} The standard account is that Federation was a ‘practical moment of unification’, driven by purely pragmatic forces rather than any kind of watershed moment or wider idealistic fervour.^{Footnote 161} This familiar narrative overlooks not only the ideas that were in circulation,^{Footnote 162} but also just how turbulent a time the 1890s really were in Australia.

The Constitution was written amidst social and economic turmoil. A long boom ended abruptly, leaving a devastating economic depression in its wake.^{Footnote 163} According to Butlin ‘the entire Australian banking system cracked’ and unemployment rose sharply.^{Footnote 164} The response of governments was not to withdraw state intervention, but to tailor it towards economic stabilisation and reconstruction. Butlin characterised these economic circumstances as an important but understudied driver of Federation itself, writing ‘[t]he Commonwealth Constitution was framed in crisis conditions’.^{Footnote 165} The extent to which these conditions, and the social challenges they gave rise to, might have influenced conceptions of the powers required by the national government is a question that is itself worthy of attention. Deakin’s biographer noted that the depression brought ‘old world poverty and suffering’, meaning that he and his fellow progressive liberals were ‘looking for new directions’ in response to it.^{Footnote 166}

The early part of the decade was also marked by widespread strikes. These began in August 1890 in the maritime industry, quickly spreading to other critical industries such as coal mining, spanning Victoria and New South Wales.^{Footnote 167} Major disruptions resulted, including in the cities, where essential utilities workers, among them those who provided Melbourne with its ‘power and illumination’, joined boycotts.^{Footnote 168} The following year saw further strikes, this time in the wool industry.^{Footnote 169} The industrial unrest was suppressed with harsh, even violent, law and order measures.^{Footnote 170} The unions were defeated, and left weakened. These setbacks led to a determination on the labour side to try different tactics, inspiring the political movement that would become the Australian Labor Party.^{Footnote 171}

In keeping with the contemporary preparedness to experiment with novel, state-led initiatives to address social problems, arbitration was one response put forward to the challenges presented by such bitter industrial disputes. For instance, it was among the recommendations of a New South Wales Royal Commission into the maritime strike.^{Footnote 172} Prior to 1901, various attempts were made in South Australia, Victoria, Queensland and New South Wales to implement industrial arbitration regimes, but these met with limited success.^{Footnote 173} While the Constitution was being debated, colonial parliaments were engaged in the design of what was an entirely new institution. Systems with what came to be recognised as the ‘essential elements’ of the ‘classical Australasian form of compulsory arbitration’ were first legislated in New Zealand in 1894, and then in Australian states from 1900 onwards.^{Footnote 174} At the time s 51(xxxv) was included in the Constitution, this mode of dealing with industrial disputes was in nascent form.

The inclusion of this provision in the Constitution was ‘unusually hard-fought’ — it was the only proposal that had to be debated on three separate occasions.^{Footnote 175} The primary advocates for it were Charles Cameron Kingston and Higgins, two of the more radical liberals present at the conventions. Neither were ever members of the Labor Party, coming from the professional rather than working class.^{Footnote 176} Politically, ‘while they classified themselves from time to time as socialists, they were very aware of the liberal genealogy of their ideas’.^{Footnote 177} Prior to the first convention in 1891, Kingston had written a draft constitution, which had included an unqualified power for the national parliament over ‘trade unions and organisations of employers, and tribunals for the settlement of industrial disputes’.^{Footnote 178} A power to address industrial disputes was once again proposed unsuccessfully in 1897 by Higgins and Kingston.^{Footnote 179} It was not until 1898 that the provision was approved by a narrow majority.^{Footnote 180}

The debates regarding this provision, prima facie at least, tended to be more focussed on the question of whether it was appropriate for the national parliament to possess power in this area, rather than whether or not conciliation and arbitration was a desirable response of any level of government to the problems posed by industrial disputes.^{Footnote 181} Indeed, this was how Edmund Barton characterised the crux of the dispute over the inclusion of this power, noting that ‘we propose to federate in those matters which cannot be carried out by local legislation and administration’.^{Footnote 182}

In terms of the contributions of some, it is hard to assess whether these federalist concerns were their primary motivation for voting against the proposal, or whether it was owing to a preference for a more limited role for the state itself. One example is the New South Wales delegate, William McMillan, who in 1898 expressed the view that ‘a clear line’ had to be drawn between the functions of the respective levels of government. In the same speech, he also said that:

In reiterating his own, previously expressed, opposition to the proposal Sir John Downer said that the question ‘goes to the root of the preservation of the entities of the states and the rights of contract possessed by their citizens’.^{Footnote 184} This statement appears to conflate the issues of the need to preserve the powers of state governments with the need to safeguard individual freedoms. Likewise, Sir Samuel Griffith objected to the initial 1891 proposal on the grounds that it was an interference with ‘property and civil rights’, matters which should, in his view, be left to the states.^{Footnote 185} George Reid, later the leader of the federal Free Trade Party, said that while he was a supporter of ‘the compulsory investigation of trade disputes’, the proposal that the federal parliament should have this form of legislative power ‘passes my comprehension’.^{Footnote 186} Bernard Wise, on the other hand, raised the concern that such a national power would ‘[deprive] the workers of local self-government’.^{Footnote 187}

In 1891, the Victorian delegate Duncan Gillies had cautioned that, given the newness of such a response to industrial disputes, ‘it would do well to leave it for some little time to the state governments to endeavour to consider the matter among themselves’ before any intervention by a federal parliament in such a manner.^{Footnote 188} Andrew Frazer wrote that perhaps, given the systems put in place in New Zealand, South Australia and New South Wales during the intervening years, there was more understanding of the proposal by 1897 than there had been in 1891.^{Footnote 189} He referred to John Quick and Robert Garran’s statement that by the time of the Adelaide Convention, ‘political thought had developed and public sentiment had ripened’ on this particular issue.^{Footnote 190} In the case of some, though, this had only served to increase scepticism.^{Footnote 191}

The debates appear to illustrate that the finer points of how a national system of ‘conciliation’ and ‘arbitration’ might function were not entirely clear, even to the supporters of the final provision. Speaking in Melbourne in 1898, Quick had said that ‘[i]t may be that there would be very little scope in the Federal Constitution for the operation of such a provision’, adding:

In the same passage of debate, McMillan observed that, given the federal question was key, ‘I do not think we have to discuss the policy of any of these matters, or to enter into long debates regarding their desirability or otherwise’.^{Footnote 193} The details regarding institutional design and function were thus left to future Commonwealth parliaments for resolution. This decision is in keeping with other aspects of constitutional drafting.

At least one of the reasons for this approach is reflected in the rhetorical question posed by Deakin during the debate over what became s 51(xxxv) in January 1898. In response to comments regarding the lack of perceived success of conciliation and arbitration in colonies that had tried it, he asked:

Another, related, reason for it was captured by Kingston on the same day. In response to the statement of Richard O’Connor that ‘it behoves us to see how [the power] is likely to be exercised’, Kingston remarked that ‘[s]urely it is for the people to say how it shall be exercised’.^{Footnote 195}

B Leaving Space for Legislation

Paul Finn observed that legislation had a primacy in Australia which it did not have in other common law countries.^{Footnote 196} Writing in 1908, Bryce said that ‘[t]he immense increase in the volume of legislation during the last half century is one of the salient features of our time’.^{Footnote 197} This wider trend, which Bryce explained as the result of ‘swift changes in economic and social conditions’,^{Footnote 198} was another that coincided with institutional foundation and development it Australia. This might be one reason why Australians ‘were born to statutes’.^{Footnote 199} But it is not the whole story. The influence of the ideas outlined in part 3 must also be recognised. As Finn also said, something ‘rarely perceived by lawyers’ was that ‘in its aggregate and orientation, our legislation created a “semi-socialist order” in environments sympathetic to individualism’.^{Footnote 200} Once more, we see the echo of ‘socialism sans doctrine’, which is perhaps better recognised as liberal idealism or social liberalism.

The decision to leave rights out of the Constitution is sometimes presented as one consequence of the age of the document, given that it was drafted before the human rights movement gathered momentum in the latter half of the twentieth century. It was also a deliberate choice. Although the drafters of the Constitution had the example of the United States Constitution before them, they opted to not include a similar Bill of Rights. An attempt to include protections modelled on certain provisions in the United States Constitution, led by Andrew Inglis Clark, was largely unsuccessful.^{Footnote 201}

One reason for this was that, already deeply in thrall to the beliefs that gave rise to the White Australia Policy, those at the Conventions wanted the parliaments of the Commonwealth to be left free to enact legislation that was racially discriminatory.^{Footnote 202} Another is that the drafters are said to have preferred English institutions of government over American ones.^{Footnote 203} As noted, though, their understanding of institutional function was also likely informed by domestic influences. These extend to socially liberal attitudes about the role of government, and the most practical and desirable manner of bringing about social reform.

In an era in which courts elsewhere produced judgments such as Lochner v New York (Lochner),^{Footnote 204} classically framed liberal rights were regarded by progressive liberals as reactionary mechanisms employed by courts to prevent necessary social reform.^{Footnote 205} They typically protected property interests and private rights which stood in opposition of collective reforming measures. Legislation was instead regarded by progressive liberals as a source of rights. As the expression of popular will, it was regarded as ‘the highest form of law’.^{Footnote 206} It was needed to confine and direct the function of the expanded role of the state such liberals imagined. Through it, the power of the state could be harnessed to address social ills.

When viewed through a ‘negative’ or classically liberal lens, on the other hand, legislation tends to be perceived in a less favourable light. Within this tradition, legislation has remained somehow less legitimate than the ‘ordinary’ or common law,^{Footnote 207} and emphasis is placed instead on its potential to interfere with, rather than confer, rights. Although this is not wholly attributable to the influence of Dicey, his theory exemplified such an understanding.^{Footnote 208} The tone of his Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century ^{Footnote 209} indicates his concern at the turn in liberalism towards collectivism. In a passage containing a footnote referring to Australia’s ‘socialistic experiments’, he observed that state intervention ‘especially in the form of legislation’, had ‘evil effects’ which were ‘gradual and indirect, and lie out of sight’.^{Footnote 210} To this, he added that ‘few are those who realise the undeniable truth that State help kills self-help’.^{Footnote 211}

For Australian social liberals, the reforms needed to bring about their objective of ‘equal opportunity’ were seen as best achieved through the enactment of legislation. The thinking of the time was reflected in what Irving refers to as ‘a new Utopian genre [of fiction] in which social experimentation through legislation creates an ideal society’.^{Footnote 212} Lake wrote that ‘[f]or Australian progressives, it was legislative enactment, not simply the espousal of “social ethics” that was necessary to secure social justice’.^{Footnote 213} A Bill of Rights would have been a potential ‘check upon legislative experimentation’.^{Footnote 214} Legislation was favoured (over ‘ordinary law’) by what Martin Loughlin described as the progressive liberal-influenced ‘functionalist’ style in public law because it was seen the ‘embodiment of the democratic will’.^{Footnote 215} This is in keeping with another feature of the Constitution which Stone has identified as positive: ‘the way the Constitution has enabled the Parliament to pursue an inclusive and innovative electoral system’.^{Footnote 216}

C Legislation and Democracy

Australian social liberals, for the most part, placed their faith not in constitutional rights, but in the ‘popular and democratic character of the Australian polity’.^{Footnote 217} Patrick Keane once explained that ‘the first thing to note about the Australian Constitution is that it was deliberately crafted to embody an ideal of responsible government and representative democracy in which each citizen participates equally with all others’.^{Footnote 218} Keane suggested that in opting to leave out a Bill of Rights, the framers took ‘a gamble on the political wisdom of future generations’, seeking not to ‘fetter’ the future ‘by the supposed wisdom of the past’.^{Footnote 219}

The democratic innovation begun in the 19^th century continued into the twentieth. In Modern Democracies, published in 1921, James Bryce remarked that, of all the democracies he had studied, Australia was the one ‘which has travelled farthest and fastest along the road which leads to the unlimited rule of the multitude’.^{Footnote 220} He further observed that ‘[o]ne can hardly imagine a representative system of government in and through which the masses can more swiftly and completely exert their sovereignty’.^{Footnote 221} Bryce assessed the ‘Australian schemes of government’ as more democratic than those of either Canada or the United States.^{Footnote 222}

Among the ‘highly democratic’ features of the Commonwealth government observed by Bryce were: ‘[t]riennial elections’; ‘[p]ayment of members’; ‘[s]carcely any restrictions on legislative power’; ‘[c]omplete dependence of the Executive upon the larger House of the Legislature’; ‘[p]rompt and easy means of altering the Constitution’; and what he termed ‘[u]niversal suffrage at elections for both Houses of Legislature’.^{Footnote 223} Suffrage was not universal at the time. The Commonwealth Franchise Act 1902 (Cth) explicitly denied voting rights to Indigenous people as well those who had migrated to Australia from Asia, Africa or the Pacific Islands.^{Footnote 224} What Bryce is apparently referring to is the absence of any property qualifications on voting, including, uniquely, for the Senate. This style of direct election was not a feature for both houses of the legislature in any other federation or at Westminster.^{Footnote 225} While the provisions of s 128 have not, in the end, provided an easy means of amending the Constitution, it too was a remarkably democratic feature of the Constitution, particularly given that it was combined with ‘a broad, liberal franchise, and the initiation of the alteration process by a fully elected Parliament’.^{Footnote 226}

On the first day of the Adelaide Convention in 1897, the overarching purpose of federation was stated by Edmund Barton to be ‘to enlarge the powers of self-government of the people of Australia’.^{Footnote 227} Read in the context of the political thinking described above, the phrase ‘self-government’ has both democratic and social liberal overtones.^{Footnote 228} The words ‘directly chosen by the people’, as found in ss 7 and 24 of the Constitution, are evocative when read in the context of these notions of democracy. They have been interpreted by the High Court to be part of a framework that protects access to the franchise^{Footnote 229} and a freedom of political communication.^{Footnote 230} But the meaning given to these provisions surely derives as much content from the surrounding context as it does from the actual 'text and structure’ of the Constitution.^{Footnote 231}

Following Federation, the system of voting was reformed on several occasions until the current mix was arrived at.^{Footnote 232} Perhaps the clearest and most ready example of the continuing institutional embodiment of this culture is found in the Australian electoral system, in which voting is compulsory and the system is overseen by a highly effective administration.^{Footnote 233} As Lisa Hill has observed, the surrender of the freedom to choose whether to turn out to vote^{Footnote 234} is ‘conceived to permit the realisation of a range of positive freedoms which are thought to flow from increased participation and a more representative legislature’.^{Footnote 235} Benjamin Jones has said that the attachment to compulsory voting signifies an adherence to ‘the civic republican ideal of communitarianism’, which he defines as ‘an ancient intellectual tradition that values the common good of the community over individual good, and even individual rights’.^{Footnote 236} Voting is regarded as a civic duty, as well as a right.^{Footnote 237} This seems reflective of socially liberal concepts of active citizens and collective wellbeing.

While compulsory voting provides a clear example of a distinctive commitment to democracy, in which rights are to be protected by making sure that each person has ‘an equal share’ in political power,^{Footnote 238} to focus on this alone is to obscure the wider picture considerably. Firstly, because voting is compulsory, efforts are made to ensure it is relatively easy.^{Footnote 239} But in addition, the system has many elements that work together in concert.^{Footnote 240} The United Kingdom and Canada, for instance, each retain ‘first past the post’ electoral systems, a method abandoned for federal elections over a century ago.^{Footnote 241} In Australia, compulsory voting is combined with preferential voting. W G McMinn stated that ‘[t]he clearest fact about preferential voting in Australia is that many Australians have come to identify it with democracy’, with the consequence that a suggestion made in the 1960s that first past the post voting be reverted to being met with ‘a remarkable hostile reception’.^{Footnote 242} He went on to note that preferential voting ‘seemed to have become a distinctive feature of Australian Constitutional practice’.^{Footnote 243} Rosalind Dixon and Anika Gauja have written that the systems of mandatory and preferential voting function as ‘some of the core structural safeguards of non-populist democracy in Australia’.^{Footnote 244}

Properly functioning institutions were recognised in the pre- and post-Federation era as crucial to the orderly and fair process of democracy, hence the establishment of electoral commissioners, and the close attention to the ‘technical detail’ of staging elections.^{Footnote 245} This continues to the present day. Following each federal election, a review of its conduct is undertaken by the Commonwealth Parliament’s Joint Standing Committee on Electoral Matters.^{Footnote 246} The use of innovative institutional approaches to structure and order the function of democracy can be recognised as a product of the wider political culture of the Federation era. It is also an illustration of the positive dimension of the Australian Constitution.

The power of the active state was always to be exercised within limits. As the joint judgment in Amalgamated Society of Engineers v Adelaide Steamship Company Limited (‘Engineers Case’)^{Footnote 247} explained, while these limits included the law, they were not restricted to this.^{Footnote 248} Outside the realm of the law, it fell to the people themselves to correct over-reach ‘by ordinary constitutional means’ — that is, at the ballot box.^{Footnote 249} This statement from Engineers demonstrates a commitment to political constitutionalism.^{Footnote 250} But the political dimensions of the Constitution need to be understood by reference to its positive ones. It is not simply that one check upon power resides with the people themselves. Considerable attention has been given to means by which this power can be well-exercised. By the time the Constitution was written, it was understood that it was possible to draw upon electoral law to mediate the effects of simple majoritarianism. Although these electoral mechanisms and institutions are not referred to in the Constitution itself, they are an important part of its continued function. This is something that perhaps informs the High Court’s jurisprudence on safeguards for the franchise and political communication.^{Footnote 251} The wider point to note here is that this approach to institutional design is replicated across a range of contexts.

D Legislative and Institutional Implementation of Conciliation and Arbitration

In keeping with this wider pattern, the design and entrenchment of the system of industrial relations was the product of legislative development.^{Footnote 252} In much the same way that reformers turned to legislation and institutional design to help support a widening electoral franchise, they also resorted to these methods an attempt to resolve the thorny issue of conflict between capital and labour. Key figures in the progressive liberal movement, such as Deakin, Higgins and Isaac Isaacs,^{Footnote 253} were not only the architects of Federation, but also of national institutions of government. The politics of each were shaped by social liberalism.^{Footnote 254} In Lake’s estimation, Deakin and Higgins were ‘key figures in translating the progressive ideas of equality of opportunity and the common good into institutional realities in the new Commonwealth of Australia’.^{Footnote 255}

Deakin, the most influential figure in the early federal parliaments, believed that ‘the state could and should become the vehicle for social justice’.^{Footnote 256} His ideas of social justice cannot be seen in isolation from his beliefs regarding race and the White Australia Policy.^{Footnote 257} Higgins was integral to the establishment of the federal system of conciliation and arbitration, as a member of Parliament and subsequently as a judge.^{Footnote 258} He was ‘strongly committed to the potential of the law as an instrument for social and political reform’.^{Footnote 259} Isaacs is thought to have been the author of the joint judgment in the Engineers Case.^{Footnote 260} In addition to its other profound effects upon constitutional interpretation, this judgment, in practical terms, helped to expand the reach of the Commonwealth system of awards.^{Footnote 261}

At the first federal election, representatives affiliated with Labor, at that stage not yet a united federal political party, won 16 seats in the House of Representatives and eight in the Senate.^{Footnote 262} They quickly formed a national party, which held the balance of power in both Houses of Parliament.^{Footnote 263} The electoral power of Labor continued to grow, and the first federal Parliaments were characterised by shifting alliances, and fragile governments. There was, nevertheless, broad agreement between Labor and the progressive liberals regarding the role of the state.^{Footnote 264} The great political issue of the day was the degree to which the new national government should intervene in the economy. Capacity to find common ground on this point meant that consensus was able be reached on many legislative measures, although there was no majority government until 1909.^{Footnote 265} In one combination or another, the progressive ‘Protectionist’ or ‘Deakinite’ liberals and Labor were able to govern for much of the first decade of Federation. This situation was to continue until ultimately, in 1909, the ‘Deakinite’ liberals joined the more conservative members of Parliament to form one of several precursors to the modern Australian Liberal Party.^{Footnote 266}

The Commonwealth Conciliation and Arbitration Act 1904 (Cth) was one product of this coalition between Labor and the Deakinite Liberals. Although cooperation between the progressive liberals and Labor did mean this Act and similar measures were able to be passed, the politics was fractious and alliances often fluid.^{Footnote 267} The legislation was controversial from the beginning. Nevertheless, Macintyre noted that ‘[t]he protectionists’ commitment to the measure [was] clear: where they differed was over its coverage’.^{Footnote 268} Kingston, for instance, resigned from his ministerial post when the initial bill was subject to Cabinet consideration, because he was not able to persuade enough of his fellow ministers that the shipping industry should be subject to it.^{Footnote 269} Attempts to expand the workers and industries covered by the Act, including to various state government employees, brought down more than one government in the early years of Federation.^{Footnote 270}

The Act established the Commonwealth Court of Conciliation and Arbitration, giving it powers to ‘prevent and settle industrial disputes’.^{Footnote 271} It banned strikes and lock-outs, and provided that employers could not dismiss employees merely because they were members of a union, or ‘entitled to the benefit of an industrial agreement or award’.^{Footnote 272} In effect, in the event of a dispute that went beyond the limits of one state, rather than taking such industrial action, the parties were required to seek resolution through the processes of the Court. The ‘distinctive character’ of the system was derived from this ‘element of compulsion vested in a permanent and independent government tribunal’.^{Footnote 273}

The system was also reliant upon, and legitimated, the role of associations of both workers and employers in the process. One of the stated objects of the Act was ‘[t]o facilitate and encourage the organization of representative bodies of employers and employees’.^{Footnote 274} As such, it provided a scheme for the registration of such bodies.^{Footnote 275} Writing about this innovative system for the Harvard Law Review, Higgins observed that it was ‘based on unionism’, without which ‘it is hard to conceive how arbitration could be worked’.^{Footnote 276} This feature of the system is resonant with the approach taken in the electoral sphere to encourage and structure the involvement of citizens in the conduct of politics itself.^{Footnote 277}

Higgins was appointed as the second President of the Court of Arbitration. His radical views made him an unlikely and controversial judge.^{Footnote 278} He used his role to pursue what he regarded as ‘social justice’.^{Footnote 279} In his judgments, speeches and papers, he shaped the role of the Court as a ‘keeper of the nation’s conscience’.^{Footnote 280} His vision for Court was in keeping with social liberal ideals of institutions as ‘repositories of the common good’ which should help facilitate individual ‘self-realization’.^{Footnote 281} State intervention in the fixing of wages was aimed at ensuring that material needs were met, which in turn provided the foundation for the ‘higher development of the individual’.^{Footnote 282} In Ex Parte H V McKay,^{Footnote 283} better known as the Harvester Decision, Higgins J ruled that the words ‘fair and reasonable remuneration’ as used by the Excise Tariff Act 1906 (Cth), meant the ‘standard appropriate’ to meet ‘the normal needs of the average employee, regarded as a human being in a civilised community’.^{Footnote 284} This extended to the provision of food, shelter and clothing adequate enough to keep a family in a ‘condition of frugal comfort estimated by current human standards’.^{Footnote 285} In assessing what this might amount to in monetary terms, Higgins J called evidence from the wives of the employees of H V McKay.^{Footnote 286}

The Commonwealth Conciliation and Arbitration Act 1904 (Cth) was part of a package of other Acts, including the Excise Tariff Act 1906 and the Australian Industries Preservation Act 1906, which sought to implement a policy of ‘New Protection’. This aimed to use tariffs to foster local industry, but this assistance was tied to price protections for consumers, in the form of an early attempt at competition law, as well as wage and condition protections for employees.^{Footnote 287} The architects of the New Protection envisaged that in the new Commonwealth of Australia, working poverty was to be consigned to the past through these forms of creative intervention by the state in the economy.^{Footnote 288}

The policy met with opposition from employer groups, who formed their own national organisations to fight the expansion of the system.^{Footnote 289} They launched constitutional challenges and were initially successful in their endeavours to limit the scope of the Commonwealth’s power through this approach.^{Footnote 290} The Commonwealth Conciliation and Arbitration Act 1904 (Cth) was the only part of the wider policy that remained largely intact. In the pre-Engineers era, other key measures did not survive these challenges^{Footnote 291} and ‘[b]y 1909, the New Protection was in tatters’.^{Footnote 292} This litigation strategy was nevertheless unable to prevent the principles of fair and reasonable wages and conditions as set down by the Commonwealth Court from being applied by Higgins J in his determinations.^{Footnote 293} These principles were also picked up by similar systems established in states including New South Wales and Victoria.^{Footnote 294} Over time, Higgins J’s setting of a minimum wage for the least skilled workers became a foundational element of industrial relations in Australia.^{Footnote 295}

Conciliation and arbitration went on ‘to have profound effects on the social structure, because of the encouragement it gave to trade union development on a national scale’.^{Footnote 296} The fixing of minimum wages and working conditions had similarly ‘profound’ effects on the ‘economic structure’.^{Footnote 297} Although it was subject to ‘almost continuous controversy’, the system became politically entrenched.^{Footnote 298} This meant it had a shaping effect on federal politics as well: attempts to alter the system would result in ‘periodical party crises’.^{Footnote 299} It also influenced thinking on aspects of public law. To take an obvious but rather telling example, the existence of a body with both court-like and arbitral powers with jurisdiction over the socially and economically critical (and contested) policy field of industrial relations contributed to the development of one of the key implications drawn from the Constitution — the separation of judicial power.^{Footnote 300}

E The ‘New Province for Law and Order’

The distance of more than a century, and the familiarity that conciliation and arbitration came to assume, have obscured just how revolutionary the ideas expressed (intentionally or otherwise) in s 51(xxxv) were. Its use of the terms ‘conciliation' and ‘arbitration’ meant that the scope and nature of this power was limited to these methods. The inclusion of these terms in the Constitution, and the use to which this power was put by Commonwealth Parliament from the very earliest stages of Federation, gave rise institutions that embodied a unique form of state intervention. In his dissenting judgment in the Work Choices Case, Kirby J described conciliation and arbitration as ‘an institution and a process that would prove very important to the societal and industrial balances struck…in the Australian Commonwealth’.^{Footnote 301} Section 51(xxxv) provided, in his terms, an ‘important guarantee of industrial fairness and reasonableness’.^{Footnote 302} The existence of the provision, and the institutions created in accordance with it, ‘instilled in Australian work standards an egalitarian principle not always present in the pure operation of the market’.^{Footnote 303}

In the ‘classical’ liberal conception, property and private rights were desirably kept free from interference by the state. Traditionally, employment relationships were thought be contractual and thus private. State intervention in the regulation of these contracts was regarded by classical liberals as overreach. Dicey, for instance, described s 4 of the Trade Disputes Act 1906 (Imp), which prohibited actions in tort against trade unions for the taking of industrial action, as ‘a triumph of legalised wrong-doing’.^{Footnote 304} In the United States, in Lochner,^{Footnote 305} a majority of the Supreme Court found that the Fourteenth Amendment to the United States Constitution protected the ‘general right of an individual to make a contract in relation to his business’.^{Footnote 306} The Court subsequently invalidated many laws containing similar measures, including those aimed at protecting minimum wages^{Footnote 307} and those allowing workers to unionise regardless of the desires of their employers.^{Footnote 308}

In contrast with the beliefs and values of classical liberalism, for social liberals, freedom of contract in the employment context was seen as a ‘misnomer’.^{Footnote 309} This was owing to the disparity in the respective bargaining positions of the parties.^{Footnote 310} In an era with few social supports, the choice for the employee might be to accept low wages and poor conditions or face starvation.^{Footnote 311} For social liberals, ‘the struggle for liberty had to be concerned with the inequality in social, economic and political power flowing from industrial competition’.^{Footnote 312} This meant that ‘[f]reedom of contract’ was for them a phrase synonymous with ‘oppression’.^{Footnote 313} Liberal advocates for conciliation and arbitration rejected the laissez-faire notion that ‘labour was a commodity like any other’.^{Footnote 314} In his essay on liberalism, Evatt had written that it now reached the point where it had embraced a recognition that ‘state interference’ in labour markets ‘is supported on the principles of equality of opportunity and social freedom’.^{Footnote 315}

The bitter strikes of 1890–91 caused ‘alarm’ amongst liberals.^{Footnote 316} They were regarded as ‘deeply disturbing, not just to public order but to the very principles upon which public life rested’.^{Footnote 317} They had been precipitated by rising class conflict. Prior to the 1890s, in keeping with the history already described, there had been a greater degree of state regulation of the employment contract in Australia than in countries like England.^{Footnote 318} In this period, however, employers began to insist upon ‘freedom of contract’ — that is, the right to bargain individually with employees free from any interference.^{Footnote 319} At the same time, unions resorted to new tactics such as ‘closed shop’ demands.^{Footnote 320} According to Macintyre, this ‘growing class mobilization’ seemed to ‘threaten the basis of liberalism’ itself.^{Footnote 321} This sense that the unrest represented a more fundamental peril led to ‘a widespread and strong desire to repair the social fabric’.^{Footnote 322}

The ‘widespread and genuine desire to protect the community at large from economic loss and inconvenience resulting from chronic industrial strife’ is sometimes said to have been ‘the most important’ factor which encouraged the adoption of the arbitration system.^{Footnote 323} Macintyre wrote that arbitration ‘was initiated neither by labour nor capital but by liberals who stood at a remove from both’.^{Footnote 324} Further, ‘insofar as sections of the labour movement took up arbitration, they did so within a political paradigm that the liberals had established’.^{Footnote 325} This is supported by Sawer, who suggested that ‘[t]he background of strike camps and violent confrontations enabled those introducing arbitration legislation to point to the public interest in preventing the harm to the whole community caused by industrial warfare’.^{Footnote 326}

Social liberalism ‘was absolutely central to the institutional discourses of industrial relations’.^{Footnote 327} Conciliation and arbitration, the solution devised to address this rising class conflict, remained liberal in its essence:

The ‘institution and process’ of conciliation and arbitration was not designed to bring about an end to the labour or any other market.^{Footnote 329} Rather, it was an intervention aimed at addressing a social and economic power imbalance in a way that was ‘in the interests of the public’.^{Footnote 330}

The constitutional foothold in s 51(xxxv) was used as a basis for legislation and the creation of novel institutions which were the primary measures employed to structure a key area of public policy. The approach adopted acknowledged that rights in the employment context have a collective aspect. Workers were asked to surrender their right to strike, and employers were required to submit to the curtailment of their powers to engage in lockouts and set their own terms of employment. The positive dimension of conciliation and arbitration does not solely derive from the fact that it was an intervention by the state designed to improve individual welfare or even industrial accord. It was also an intervention aimed at social and political wellbeing. One purpose of the institution was to structure the exercise of forms of power in society in a way that avoided resort to more destructive uses of such power. Much like the adoption of electoral structures and institutions in support of democracy, this embodied a recognition that something more than purely legal or political forms is needed to achieve a well-functioning constitution.