Active Citizens and an Active State: Uncovering the ‘Positive’ Underpinnings of the Australian Constitution
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/0067205X241280063 |
| Author | Lynsey Blayden |
| Date | 01 September 2024 |
| Subject Matter | Special Issue: Positive Democratic Constitutionalism in Australia |
Special Issue: Positive Democratic Constitutionalism in Australia
Federal Law Review
2024, Vol. 52(3) 293–327
© The Author(s) 2024
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DOI: 10.1177/0067205X241280063
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Active Citizens and an Active State:
Uncovering the ‘Positive’
Underpinnings of the Australian
Constitution
Lynsey Blayden*
Abstract
The Australian Constitution was drafted, and the institutions of national government were es-
tablished, during a period in which the atomism of laissez-faire liberalism was being rejected. Instead,
progressive liberals of the era were searching for ways to encourage collective action and social ties,
believing that this would, in turn, enhance personal wellbeing. This article contends that a clearer
appreciation of the influence of the ‘social’turn in liberalism upon Australia’s constitutional and
institutional development might contribute to a fuller understanding of Australia’s distinctive
constitutional and public law traditions.
Accepted 14 March 2024
…the process of conciliation, with arbitration in the background, is substituted for the rude and bar-
barous processes of strike and lockout. Reason is to displace force; the might of the State is to enforce
peace between industrial combatants as well as between other combatants; and all in the interest of the
public.
H B Higgins
1
* Lecturer, Sydney Law School, University of Sydney. Special thanks to Rosalind Dixon and Adrienne Stone for their
contribution to this work and for providing me with opportunities that enabled me to develop it. Thanks also to Mark
Aronson, Matthew Blayden, Nicholas Boyle, Zsofia Korosy, Will Bateman, Will Partlett, Patrick Emerton, Harry Hobbs and
the anonymous reviewers for their generous and helpful comments. The research for this article was supported by the
Australian Government through the Australian Research Council Laureate Program ‘Balancing Diversity and Social
Cohesion in Democratic Constitutions’(project ID: FL160100136). The views expressed herein are those of the author and
are not necessarily those of the Australian Government or Australian Research Council. The author may be contacted at
lynsey.blayden@sydney.edu.au.
1. Henry Bournes Higgins, ‘A New Province for Law and Order’(1915) 29 Harvard Law Review 13, 14.
I Introduction
Constitutions are a product of many things, including ideas. Although the ‘modesty’of the
document has perhaps tended to obscure this point, the Australian Constitution is no exception.
2
Like other constitutions, its design was, and its interpretation is, influenced by ideas. During the
period in which it was written, and in the decades following Federation, specific ideas about the role
of government, and the role of the people themselves, had a significance in the politics of Australia
that they had in few other nations at the time.
3
These ideas are about the very nature of government
itself. As such, they should be recognised as influential in the shaping of Australian constitutional
and institutional design and function.
I suggest that in addition to its political and legal elements, the Australian constitutional
framework has what can be described as a ‘positive’dimension. Australia’sConstitution was drafted
and first came into operation during a time when progressive or ‘social’liberalism
4
was at the peak
of its influence. Australian adherents believed in an ‘active’and ‘expansionist state’with ‘socialistic
tendencies’.
5
The notion that the state ought to have such a role was balanced by some ideas
regarding democracy which were also distinctive for their time.
The version of political liberalism that was influential upon Australian politics while the
Constitution was first drafted and then brought to life encompassed a range of beliefs on many
questions.
6
Yet,certain key them es are discernible in the politics of the period. These can perhaps be
summarised as a belief in a form of positive liberty, or the notion that state intervention was required
to promote the wellbeing of individuals and the community. This was accompanied by the un-
derstanding that it was the role, indeed the duty, of citizens themselves to ensure that government
acted in their best interests.
I do not submit that everyone in Federation-era Australia held such beliefs, nor even that there
was broad agreement on every subject amongst those who did. It is also not my intention here try to
obscure the obvious flaws in Australia’s constitutional tradition, which are in many ways insep-
arable from the political beliefs that are the subject of this article.
7
Rather, I draw attention to an
existing literature that indicates that social liberalism had considerable currency in Australia in the
decades before and after Federation. This period coincided with the drafting of the Constitution,and
the subsequent establishment of the institutions of national government. The claim that Australia’s
2. See Elisa Arcioni and Adrienne Stone, ‘The Small Brown Bird: Values and Aspirations in the Australian Constitution’
(2016) 14(1) International Journal of Constitutional Law 61, 60; Patrick Emerton, ‘Ideas’in Cheryl Saunders and
Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 143, 144–6.
3. New Zealand is similar in this regard. See, eg, Marilyn Lake, Progressive New World: How Settler Colonialism and
Transpacific Exchange Shaped American Reform (Harvard University Press, 2019).
4. Marian Sawer, The Ethical State? Social Liberalism in Australia (Melbourne University Press, 2003). Sawer noted that in
its own period it was referred to as ‘new liberalism’but she instead adopted the term ‘social liberalism’as it both
distinguishes it from neoliberalism and was the more familiar term in Australia: at 3. I am seeking to capture some of what
was distinctive about the Australian political culture of the period, so Sawer’s terminology is primarily used here.
5. Lake (n 3) 45–6.
6. For an overview, see, eg, Stuart Macintyre, ‘Liberalism’in Graeme Davison, John Hirst and Stuart Macintyre (eds), The
Oxford Companion to Australian History (Oxford University Press, 1998) 388; Marian Sawer, ‘Liberalism’in Brian
Galligan and Winsome Roberts (eds), Oxford Companion to Australian Politics (Oxford University Press, 2007) 320.
7. See Lake (n 3) for analysis of the close links between progressive liberalism, the settler colonial outlook and White
Australia Policy,which are referred to in part 3.3. The influence of these notions can be seen in the exclusionary concept of
the people that is still explicit in parts of the Constitution. See, eg, Arcioni and Stone (n 2) 68; Elisa Arcioni, ‘Excluding
Indigenous Australians from ‘The People’: A Reconsideration of Sections 25 and 127 of the Constitution’(2012) 40(3)
Federal Law Review 287; Megan Davis and Dylan Lino, ‘Speaking Ill of the Dead: A Comment on S 25 of the
Constitution’(2013) 23(4) Public Law Review 231.
294 Federal Law Review 52(3)
institutional development was influenced by social liberalism has previously been made by Marian
Sawer.
8
This raises a large question regarding how these positive notions of the state and its role
might have interacted with, and informed, the specific conceptions of democracy that are at work
within the Australian constitutional framework. Further, to what extent might the Constitution be
viewed as designed to provide a structure for a state with the capacity to advance ‘the well-being of
its members’?
9
It is not the object of this article to attempt to fully answer these questions. The aim is rather to
begin the task of recovering this dimension of Australian constitutional tradition —not with a view
to definitively fixing its bounds or exploring all potential implications, but rather to encourage
renewed attention to its importance.
10
This might in turn contribute to a more complete under-
standing of the ‘somewhat distinctive’
11
character of the Australian Constitution.
In furtherance of the aim of developing a clearer account of the influence of ideas regarding the
role of the state in Australia around the time of Federation, one Australian policy innovation in
particular has been selected for consideration. This is the system of conciliation and arbitration
established soon after Federation, pursuant to s 51(xxxv) of the Constitution. The system embodied
a singular intervention by the state in what classical liberalism regarded as the private right of
contract. While Australia retains a ‘unique’
12
system of industrial relations, it no longer turns on the
lynchpin of compulsory conciliation and arbitration. But until the 1980s, at least, the institution was
‘a distinguishing, and basic feature of Australian national life’.
13
It was central to social and
economic policy.
14
It encouraged the growth of trade unions, a key element of civil society. It
ensured that labour was able to play a substantial role in the setting of wages and conditions.
Arguably, it may have even helped to keep material inequality in check.
15
For each of these reasons,
it provides a good starting point for demonstrating the positive dimension of the Australian
Constitution.
This article proceeds as follows. Part 2 explains the archetypes of positive and negative con-
stitutionalism. It challenges the typical explanation of the Australian Constitution as being simply a
hybrid of political and legal constitutionalism. Part 3 sets out some of the political ideas that were
current in late 19
th
century Australia. This part contains an explanation of a wider intellectual
movement known as social liberalism, which helps to provide some context for the Australian
politics of the period. Part 4 sets out some background to the inclusion of section 51(xxxv) in the
Australian Constitution. This part illustrates that the ideas described in Part 3 were not only one
influence upon constitutional design, but, perhaps critically, also upon the national politics of the
early years of Federation. This period, during which the institutions of national government first
took shape, should be seen as just as relevant to an understanding of the ideas that are part of
Australian Constitution as the decade during which the document was debated and drafted. Part
4 also contextualises the development of the system of conciliation and arbitration, which can be
8. Sawer (n 4).
9. Nicholas Barber, The Principles of Constitutionalism (Oxford University Press, 2018) vii. With regard to Australia, see
Adrienne Stone and Lael Weis, ‘Positive and Negative Constitutionalism and the Limits of Universalism: A Review
Essay’(2021) 41(4) Oxford Journal of Legal Studies 1249.
10. I am indebted to Rosalind Dixon for help framing the contribution in these terms.
11. Emerton (n 2) 144.
12. Andrew Stewart, Stewart’s Guide to Employment Law (Federation Press, 7
th
edition, 2021) 3.
13. N B Nairn, ‘The Maritime Strike in New South Wales’(1961) 37(10) Historical Studies Australia and New Zealand 1, 1.
14. Stuart Macintyre and Richard Mitchell, ‘Introduction’in Stuart Macintyre and Richard Mitchell (eds), Foundations of
Arbitration: The Origins and Effects of State Compulsory Arbitration 1890–1914 (Oxford University Press, 1989) 1, 2.
15. On the mixed benefits of the system, see Macintyre and Mitchell (n 14) 13–15.
Blayden 295
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