Convention has settled, conditions extremely difficult to secure. The Swiss system permits the Constitution to be amended by the same process as is applied to the passing of laws, plus a popular vote which results in a majority of Cantons and in a majority of the people voting over the whole Confederation. XVIII. RELATIONS OF THE AUSTRALIAN COMMON WEALTH TO THE CROWN. It has not seemed necessary to set forth the relations of the Commonwealth to the British Crown, because these relations are substantially those which have heretofore existed between the Crown and each of the self-governing colonies now united in the Federal Commonwealth. The chief difference is that the Commonwealth Parliament receives certain powers (as to extra-territorial fisheries and relations with the islands of the Pacific) which were previously exerciseable only by the (now extinct) Federal Council of Australasia (mentioned above), that it has a general power to legislate on 'external affairs' (a somewhat vague term, sect. 51, xxix), and that it may 'exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, any power which can now be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia' (sect. 51, xxxviii). Apart from these provisions, which may give rise to some delicate questions, the principles and practice which have guided the action of the Home Government and of the Colonial Governors will apparently be preserved. Though the Imperial Parliament has an unquestioned right to legislate for every part of the British dominions so as to override all local legislation, it does not now exercise this power except for a few purposes of utility common to all, or many, British possessions, such as for the regulation of merchant-shipping or copyright, and when it does so, it secures the assent of the self-governing Colonies. So again, though the Crown has a legal right to withhold consent from Colonial Statutes, this right is rarely exerted, and then only in respect of some general imperial interest which it is supposed that the statute in question may prejudicially affect, i. e. the Crown's right is not exerted in the interest of any class of persons in the Colony or in pursuance of any particular view entertained either by the Governor there or by the Ministry at home. The new Australian Constitution provides (sectt. 58-60) that when a measure passed by the Parliament is presented to the GovernorGeneral, he may either assent to it in the Queen's name (but subject to a power to the Queen to disallow the same within one year) or he may withhold assent; or he may reserve it for the Queen's pleasure, in which last case it shall not take effect unless he announces within two years that the Queen has assented to it. This right of veto, though it looks on paper larger than that which belongs to the President of the United States, seeing that the President's veto can be overridden by a two-thirds' majority in each House of Congress, is in reality far more limited, and will constitute no check (except where imperial interests may be affected) upon the practically sovereign power of the Commonwealth Parliament. XIX. COMPARISON WITH THE CONSTITUTIONS OF 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: I. 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 GovernorGeneral 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. |