Federalising Socialism Without Doctrine
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/0067205X241280366 |
| Author | Will Bateman |
| 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) 328–358
© The Author(s) 2024
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DOI: 10.1177/0067205X241280366
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Federalising Socialism Without
Doctrine
Will Bateman*
Abstract
The Australian Constitution is only partly ‘liberal’(securing political and economic liberties); another part is
‘socialist without doctrine’(empowering governments to own and operate vast public capital, while
providing social insurance in a market economy). Thatmixtureiscommoninmodernadvancedeconomies
but was anomalous in the Anglophone constitutional tradition in 1901. Legislative power over ‘old age and
invalid pensions’,‘railway construction’and ‘conciliation and arbitration for the prevention andsettlement
of industrial disputes’was an accepted part of the incipient Federal scheme but repugnant to Anglophone
constitutional orthodoxy of the 19
th
century. The integration of ‘colonial socialism’into the Constitution
created one of the longest-standing puzzles in Australian jurisprudence, the Surplus Revenue Case of 1908,
and laid the foundations for federal dominance of the Australian economy. Understanding the enduring
impact of colonial socialism in Australian constitutionalism sheds light on how Australia’s distinctive political
economy grew within a ‘Washminster’system of government. It also provides principled guidance for
future policy challenges that may require expansion of state involvement in the economy.
Accepted 24 August 2023
I Introduction
A central debate in economic history is whether the ‘Australian Settlement’has been ‘either too
powerful or not powerful enough’.
1
The outsized role Australian colonial governments had in their
* Professor of Law and Associate Dean (Research), College of Law,Australian National University. I am grateful for the insightful
comments on earlier versions of this paper provided by participants at the Zines Symposium 2022 and the UNSW Comparative
Constitutional Workshop 2022: Democratic Equality, Representation & Responsiveness in Australia, particularly: Robert Beech-
Jones, Virginia Bell, Lynsey Blayden, Ros Dixon, Patrick Emerton, Stephen Gageler, Geoffrey Kennet, Malcolm Langford, Will
Partlett, Ben Saunders, James Stellios and Adrienne Stone. I am also indebted to Joshua Getzler, Leighton McDonald, Melinda
Cooper, Ntina Tzouvala and Henri Vickers for their invaluable comments on earlier drafts. Henri Vickers performed excellent
research assistant work and provoked me to think carefully about the chosen topic. Thepaper reflects many years of conversations
about Australia’s constitutional tradition with Selena Bateman, Peter Cane and Paul Finn.
1. Peter Lloyd, ‘Analytical Framework of Australia’s economic history’in Simon P Ville and Glenn Withers (eds), The
Cambridge Economic History of Australia (Cambridge University Press, 2015) 52–69, 67. Major contributions are NG
Butlin, ‘Colonial Socialism in Australia’, in H GJ Aitkin (ed), The State and Economic Growth: Papers of a Conference
held in October 1956 under the auspices of the Committee on Economic Growth (New York: Social Science Research
Council, 1959); CB Schedvin, ‘Midas and the Merino: A Perspective on Australian Economic Historiography’(1979)
32(4) Economic History Review 542; HM Boot, ‘Government and the Colonial Economies’(1998) 38(1) Economic
History Review 74; L Frost, ‘Government and the Colonial Economies: An Alternative View’(2000) 40(1) Economic
History Review 71.
economies compared with the Home jurisdiction and the United States is a core predicate of that
debate. ColonialAustralian governments builtmajor capital assets, operated them for profit,exploited
international bon d markets for project-finance, were mass employers, labour market-regulators and
provided the most generous social insurance in the Anglosphere. In turn, the populace cultivated an
investormentality and aspired to affluence,rather than utopian equality or re-distribution. That curious
blend of state-direc tion within the market-system has l ong been labelled ‘colonialsocialism’,
2
and was
originally called‘socialism without doctrine’due to itshighly pragmatic and anti-theoretical tone.
3
It
created ‘a regimeof economy and society in which state-established institutions…directly regulated
or publicly influenced the labour and finance markets’.
4
Enduring puzzles were left for both ‘market
liberals and state socialists’
5
: did state dominance retard or boost economic growth
6
; why did the
market paradigm survive once workers could vote themselves wages and pensions
7
;andwasthe
colonial period really ‘socialist’if it was racist, affluent and chauvinistic?
8
The relevance of debates about Australia’s colonial socialism should be obvious to constitutional
thinkers. If the colonial Australian economy was uniquely ‘statist’, compared to its juristic an-
cestors, then the nature of the ‘constitutional state’in Australia immediately before Federation
meaningfully diverged from ‘Washminster’precedents.
9
Influential English jurists understood that
split with classical liberalism. Dicey wrote that ‘socialistic legislation and experiment have been
carried to a greater length in Australia than in England’
10
and described (locally unremarkable)
aspects of colonial government as types of ‘evil’.
11
The same aversion to state involvement in
economic conditions was dominant in US legal circles in 1900. Long after employee-safety
legislation was normalised in the Australian colonies, the US Supreme Court (notoriously) in-
validated 10-hour work-day legislation in reliance on constitutionalised ideas of contractual
freedom from government intervention: ‘the freedom of master and employee to contract with each
other in relation to their employment, and in defining the same, cannot be prohibited or interfered
with, without violating the Federal Constitution’.
12
The notions of laissez-faire that underpinned
2. See, eg, William Pember Reeves, State Experiments in Australia and New Zealand (Cambridge University Press, 2011)
vol 2; FW Eggleston, State Socialism in Victoria (PS King and Son, 1932).
3. ‘Demands on government are for practical concessions rather than declarations of principles. Western Europe is richer in
theory, Australasia in practice’: Albert M´
etin, Socialism Without Doctrine, tr Russel Ward(Alternative Publishing Co-
operative Ltd, 1977) 180. M´
etin was a French socialist professor who visited Australia and New Zealand in the 1890s.
Observing the implementation of state-centric socio-economics, he returned to France, became a national politician and
eventually served as the Minister for Labour and Social Welfare (1913–1916). He could be understood as the ‘Con-
tinental’James Bryce: cf Stephen Gageler, ‘James Bryce and the Australian Constitution’(2015) 43(2) Federal Law
Review 177; Blayden (n 22).
4. Lloyd (n 2).
5. Ibid.
6. Eg, Butlin (n 1); cf Frost (n 1).
7. Eg, Lloyd (n 1) 60-2.
8. Eg, M´
etin (n 3), 178–86.
9. That ‘[t]he Australian Constitution embodies two constitutional traditions. While modelled partly on the Constitution of
the United States, it incorporates the British notion of responsible government’(Stephen Gageler, ‘Foundations of
Australian Federalism and the Role of Judicial Review’(1987) 17(3) Federal Law Review 162, 164), is a fundamental
unit of thought for Australian constitutional jurists.
10. Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion (Macmillan, 2
nd
ed, 1919) 387.
11. Ibid 292.
12. Joseph Lochner, Plaintiff in Error v. People of the State of New York, 198 US 45 (1905).
Bateman 329
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