Formación de conceptos y su “operacionalización”

Historians old and new have, implicitly and explicitly, suggested that ‘models’ were influential in shaping the Australian Constitution, particularly in relation to the Senate. Some invoke ancient Rome and Greece; most refer to the United States’ Senate and the British House of Lords; others suggest that the Australian colonial parliaments were the primary models. Here, for example, is what the seminal

Australian constitutional historians Quick and Garran (1901) said on the topic of the Australian Constitution:

[It] … is an adaptation of the principles of British and colonial government to the federal system. Its language and ideas are drawn, partly from the model of all modern governments, the British Constitution itself; partly from the colonial Constitutions based on the British model; partly from the federal Constitution of the United States of America; and partly from the semi-federal Constitution of the Dominion of Canada; the Constitution of the

Commonwealth, therefore, is not an isolated document. It has been built on traditional foundations. Its roots penetrate deep into the past.1

La Nauze concentrated on the structure of the Constitution as a whole, but drew on Inglis Clark’s draft of 1891 to emphasise the United States Senate as the major model for the Australian Senate. ‘For the composition of his Senate Clark followed the American model’.

This is the conclusion in a nutshell. However, it is only a conclusion; the authors do not specify the reasoning behind the statement.

2

1

John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth, 1995 ed. (Sydney: Legal Books 1901), p.vii.

2

J.A. La Nauze, The Making of the Australian Constitution, (Melbourne: Melbourne University Press, 1972), pp.25-27.

In contrast to Quick & Garran, La Nauze made no reference to ancient regimes or to the British House of Lords. Erling M. Hunt, an American

129 commentator, clearly saw the United States as the major model for the Australian Senate. This much is evident from the title of his book, though he does not see the Senate as a ‘slavish copy’ of the American model. He tells us that Canada,

Switzerland, the German Empire, and Norway were also referred to in relation to certain issues such as the referendum, the composition of the Senate, and deadlock provisions.3

Separate chambers date from ancient times and the original purpose was to allow representation of different groups of interests and classes. They were a device to allow sections of society, other than the elite or nobility, a voice in government. The privilege was still limited to the more prosperous and powerful citizens but the device of separate chambers contributed to a more acceptable and therefore more stable government. Ancient Greek philosophers, including Aristotle, advocated such a ‘mixed’ government and it has influenced parliamentary philosophy on a global scale and for many centuries. The ancient Greek and Roman examples were a strong influence on the evolution of modern federations and Meg Russell, in her discussion of the origins of second chambers, notes that the ‘existence of multi-chamber parliaments may be traced back to ancient Greece and Rome’. She These are examples of the general position of historians on the subject of

precedents for the Australian Senate; but it is not the whole story. In fact, there has not been a systematic discussion of upper house models explored by the

delegates themselves before they made their decisions on the structure of the Senate. The obvious models, the Australian colonial upper houses, have been discussed in the previous chapter. The following two chapters ask: what other models were discussed in the Convention debates and what issues were they introduced in relation to? I will argue that the Senate was not just a ‘Washminster’ hybrid; it drew on various models from the ancient and modern worlds. This chapter will examine models from the ancient world and modern Britain and Europe.

3

E.M. Hunt, American Precedents in Australian Federation, (New York: Columbia University Press;

130 saw the Athenian people’s chamber, which comprised representatives from each of the ten tribes, as a precursor of modern federal chambers or Senates.4 In their study of bicameralism Tsebelis and Money argued ‘there is considerable continuity from ancient Greece to the 18th century … the two legislative bodies represented different classes or groups of citizens’.5 Bicameralism then, was a pre-democratic principle in that the upper chamber represented the powerful and wealthy of

society, while the lower chamber represented the less patrician citizens, though still those with some status and wealth. As Loewenberg and Patterson put it the

division of the legislature into both ‘an upper and a lower house was originally a class conscious sense of “upper and lower”’.6

The same reason which induced the Romans to have two consuls makes it desirable there should be two chambers: that neither of them may be

exposed to the corrupting influence of undivided power, even for the space of a single year.

John Stuart Mill also had something to say about second chambers, for and against, and ascribed the genesis of the idea to the Romans:

7

Consuls were the chief magistrates of Ancient Rome, at first both were patricians then, from 367 BC, one was required to be a plebeian.8

Of all principles on which a wisely conservative body, destined to moderate and regulate democratic ascendancy, could possibly be constructed, the best seems to be that exemplified in the Roman Senate, itself the most

consistently prudent and sagacious body that ever administered public affairs.

Mill also expressed great admiration for the Roman Senate:

9

Mill wrote this in 1861, after the crisis of the Great Reform Act in Britain in 1832, which, he argued, had undermined the power of the House of Lords.

4

Meg Russell, Reforming the House of Lords: Lessons from Overseas, (Oxford: Oxford University Press, 2000), p.20.

5

George Tsebelis and Jeanette Money, Bi-Cameralism, (Cambridge: Cambridge University Press, 1997), p.13.

6

G. Loewenberg and S.C. Patterson, Comparing Legislatures, (Boston: Little, Brown, 1979), p.121. 7

John Stuart Mill, On Liberty and Other Essays, ed. John Gray, (Oxford University Press, 1991), p.385.

8

Nathaniel Harris, History of Ancient Rome, 2003 ed. (London: Chancellor Press, 2000), p.9. 9

131 I will argue that the concept of an ‘upper’ house as a patrician institution still

lingered in the minds of the Convention delegates despite their declared democratic principles. As we have seen, in many respects the delegates were creatures of habit and their experience and education unconsciously caused them to regard second chambers as ‘upper’ houses and institutions of greater distinction than lower houses. This disposition, I suggest, influenced the decision to establish an upper house in the first place and then to regard it as the superior body.

There is little overt evidence that the Convention delegates were influenced by ancient examples, though most of them were either well educated or well read. Edmund Barton, for example, enjoyed a classical education at Sydney University and so had a strong grounding in the Greek and Roman classics. Geoffrey Bolton argued in his biography of Barton that the ‘same Greek and Roman precedent would become one of the subliminal influences in the shaping of an Australian nation’.10

10

Geoffrey Bolton, Edmund Barton: The One Man for the Job,(St. Leonards, Australia: Allen & Unwin, 2000), p.16.

Barton was not alone among the delegates in having received a classical education and other delegates would have been familiar with these early

precedents. Bolton’s use of the word ‘subliminal’ is relevant in relation to Greek and Roman influences on the delegates, because there is only minimal mention of them in the Convention debates. The only evidence of the influence of antiquity came in a spirited exchange on the issue of equal representation of the States in the Senate, on 10 September 1897. On that day the ancient Greek legislatures of about the third century B.C., the Lykian League and the Achaean Assembly were drawn into the discussion by Josiah Symon and Henry Higgins. As has been shown, Higgins was a vociferous opponent of equal representation of the States in the Senate, and Symon was an equally vociferous supporter of the concept. It is evident from their passionate duel that both felt that history was on their side. Here though, the interest is in their learned comments on these ancient Greek

federations. Symon, in a long speech, compared the ancient Achaean League to the modern constitution of the United States, citing it as an example of a successful federation which gave equal representation to each member city and claimed that

132 that was the example the United States had followed. Higgins riposted with another ancient example to support his view that equal representation is undemocratic by citing the Lykian League, whose cities were represented by members according to their population. One source suggests it was actually the Lykian League on which the United States Constitution was modelled.11

A more visible relationship to antiquity is in the name the Senate for the upper house. The name came to Australia indirectly from the Roman Empire via the United States. It is an ancient word which, literally, means ‘council of old men’. The word is also used in other contexts, mostly academic, to describe various

authoritative bodies, particularly in some major British universities. The history of the word is a complex and tortuous tale but historians Patterson and Mughan, as well as Russell, tell us that the majority of second chambers of today take the name from the famous council of elders of ancient Rome which held sway during the second century BC.

The question of equal

representation in the Senate was a bitterly fought out verbal battle and was in many ways an echo of the United States Convention debates, where the same issue attracted passionate argument. In America the resolution or compromise, known as the ‘Connecticut Compromise’ was to agree to equal representation of the States in the Senate in order to persuade the smaller states to accept

federation. The Australians accepted this view after lively debates, and followed suit.

12

11

OR, 10 September 1897, pp.292, 348. New York Times, 19 September 2005, ‘Lycian League Parliament Building Identified’.

12

Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicameralism in the Contemporary World (Columbus: Ohio State University Press, 1999), Russell, Reforming the House of Lords: Lessons from Overseas, p.19.

Roger Foster in his Commentaries on the Constitution of the United States points out that the Americans themselves simply borrowed the name: ‘the United States took the name from the body which ruled ancient Rome, the Roman Senate. … This was a body of warriors with whom the king or Chieftain

133 held his councils of war’.13 The United States and Australian Senates more closely resemble the Roman Tribunate as legislative bodies rather than warriors.14

As delegates used different names at different times this led to some confusion until James Walker interjected, as noted in Chapter 3, suggesting it should be called the Senate because ‘It is much simpler, and we all know what it means’. This did not please Edmund Barton whose Constitutional Committee had chosen the name ‘States Assembly’. He, not surprisingly, protested vigorously but in vain at the amendment, which was quickly passed.

The comments of the delegates suggest that it was the historicity of the name that was the major influence in the naming of the Australian upper house. It overcame all other suggestions made in earnest deliberations to give the house a name that would properly reflect its declared purpose of representing the interests of the separate states: ‘States Assembly’ or ‘Council of States’. In the early Convention debates ‘Senate’ was used frequently but not solely to describe the proposed upper house but, in the 1897 Convention, the Constitutional Committee charged with the duty of selecting a name for the upper house, decided upon ‘States Assembly’.

15

The amendment was strongly supported by George Reid who said the word ‘commends itself to an English community far more than this Frenchified title’, which was a sly reference to the name of the French Parliament: the ‘Estates General’. Reid and Barton were political opponents in the NSW Parliament and this could be an indication of Reid’s hostility to Barton as much as support for the new name.16

Walker’s amendment made perfect sense to most of the delegates and can be seen as more evidence of a ‘subliminal’ influence, or the heart ruling the head. Another ‘subliminal’ influence could have been that the name ‘States Assembly’

13

Roger Foster, Commentaries on the constitution of the United States, historical and juridicial: with observations upon the ordinary provisions of state constitutions and a comparison with the

constitutions of other countries, p.459. 14

Quick and Garran, The Annotated Constitution of the Australian Commonwealth, p. 415. Quick & Garran draw from Roger Foster.

15

OR, 13 April 1897, p. 481. 16

134 has no poetic resonance and would bring a tedious problem with apostrophes, though the compilers of the records of the debates conveniently ignored this grammatical aspect. La Nauze later wryly observed that the change saved the country from the perpetual irony of a second chamber with a meaningless name, for the Senate very quickly abandoned its States’ focus to become, like the House of Representatives, a house dominated by political parties.17

The House of Lords emerged in Britain in the 14th century and is one of the earliest examples of an upper chamber in the modern world. It has been highly influential in the development of bicameralism across the globe, not just in British societies. Bicameralism and the concept of an upper and lower house evolved in Britain as a result of a split in the Great Council, an assembly of the chief

landholders of the kingdom, ecclesiastical and lay, which met to advise the king and agree on taxation.

The other ancient model, though not as venerable as the Greek and Roman examples, was the British House of Lords. This was the institution with which the delegates were familiar from their own traditions and heritage. The House of Lords was a major model for many modern upper houses. It was not a very practical model, dating as it did from the Middle Ages and based upon out-of-date principles, foremost of which was that its members were there on a mainly hereditary basis, which was unacceptable in the Australia of the 1890s. This did not deter the Convention delegates, who were staunchly British and, though they accepted that the hereditary principle was impractical for Australia, still saw the institution as a model in other ways: as an integral part of an Australian bicameral parliament; as a house of review, or check on the lower house; and in its procedures, ceremonies and rituals, many of which were incorporated into the procedures of the Australian Senate and modelled on the example of the Colonial Legislative Councils.

18

17

La Nauze, The Making of the Australian Constitution, p.141. 18

A. Lawrence Lowell, The Government of England, vol.1. The MacMillan Company, 1921, p.394. The Council, the ‘most venerable of all British institutions reaching back beyond the Norman Conquest and beyond King Alfred, into the shadowy regions of Teutonic antiquity’ had previously expanded its membership

135 from feudal lords to include Burgesses representing local communities.19 When these different ‘estates’ began to meet separately, this marked the emergence of an upper chamber comprising the aristocracy and bishops, sitting in their own right, and a lower chamber representing counties or boroughs, and called the

Commons.20

By the end of the 19th century, when Australia was considering a new Constitution, the composition of the House of Lords included all of the ‘peers of the realm’, by whatever title, and the English Bishops (4). Other members included Irish peers (28) and Scottish representative peers (16), appointed on various principles. The Crown, or the ‘ministry of the day’, had unlimited power to create hereditary peerages.21 In 1830 the number of peers was 401; by 1899 the number had increased to 591, and the House was the largest second chamber in the world. Only ‘peers of the realm’ were members of the House by virtue of descent and were summoned to Parliament by a writ of summons from the Sovereign, though they did not all attend.22

The division of powers between the houses is a critical factor in the smooth

functioning of a legislature as a whole and the powers of the House of Lords were an important consideration for the delegates in designing their upper house. The House of Lords had a two-fold role in the British Parliament in that its powers were both judicial and legislative. Judicial authority was rejected as a role for the

Australian Senate; instead a separate judiciary was established along the lines of the United States Constitution, another important model to be considered in the

The composition of the Lords was clearly not a suitable model for the Australian situation but other factors influenced those delegates who saw it as a model for Australia, the most important being its powers in relation to the lower House of Commons.

19

James Bryce, 'Conference on the Reform of the Second Chamber: Letter from Viscount Bryce to the Prime Minister', (London: His Majesty's Stationery Office: 1918; Reprinted for the Legislative Assembly of New South Wales 1929), p.5. para. 18.

20

Russell, Reforming the House of Lords: Lessons from Overseas, p.20. 21

Lowell, The House of Lords, vol.1., p.395. 22

J.A. Marriott, Second Chambers - an Inductive Study in Political Science, New, revised and part rewritten ed. (Oxford: Clarendon, 1927), p.55.

136 next chapter. The legislative role of the Lords in the 1890s was however a clear model for the delegates and was used to both support and undermine arguments about the Senate’s powers in relation to the lower house. In this role at this time the Lords had co-ordinate authority over legislation together with the Sovereign and the House of Commons, except that the imposition of taxation was the sole prerogative of the Commons. In this the Lords’ powers were limited, not by statute but by convention and precedent, which in Britain were as binding as statutes. Apart from this limitation both Houses could originate, amend or reject any Bill, and