Property and the Drafting of the Australian Constitution
| Author | Simon Evans |
| Published date | 01 June 2001 |
| Date | 01 June 2001 |
| DOI | http://doi.org/10.22145/flr.29.2.1 |
| Subject Matter | Article |
PROPERTY AND THE DRAFTING OF THE AUSTRALIAN
CONSTITUTION
Simon Evans*
In this article, I present the results of a study into the extent to which property figured
as a constitutional and political concept in the drafting of the Constitution at the
Australasian Federal Conventions of the 1890s. Property is a fundamental concept of
western legal orders and a powerful political and rhetorical tool. Accordingly, it is
important to understand both how it affected the drafting of the Constitution and how
it is reflected in it. In Section I, I outline the process by which the Constitution was
drafted by the Australasian Federal Conventions in the 1890s. In Section II, I identify
the constitutional provisions in which 'property' and some related terms appear and
assess the extent to which the Conventions shed light on the meaning of those
provisions. In Section III, I discuss the striking ways in which property, as a political
concept, influenced debate at the Conventions on constitutional provisions that do not
themselves deal with property. In the final section, Section IV, I attempt an overall
assessment of the significance of the conc ept of property at the Conventions.
I. THE AUSTRALASIAN FEDERAL CONVENTIONS
The Australian Constitution was drafted at a series of meetings during the 1890s (I refer
to these variously titled meetings as 'the Conventions' and the delegates to the
Conventions as 'the Framers').
• Thirteen delegates appointed by the colonial parliaments (including New Zealand)
met as the Australasian Federation Conference in Melbourne from 6 February 1890
to 14 February 1890.
• The next convention, the National Australasian Convention, held in Sydney from 2
March 1891 to 9 April 1891, again consisted of delegates (on this occasion 45 in
number) appointed by the colonial parliaments. It produced a draft Constitution
Bill which formed the basis of discussions at the next national Convention in 1897–
98.
• That Convention, the Australasian Federal Convention, held three sessions in 1897
and 1898. The first session was held in Adelaide from 22 March 1897 to 23 April
1897, the second session in Sydney from 2 September 1897 to 24 September 1897
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* Lecturer, Faculty of Law, University of Melbourne. I am most grateful for the excellent
research assistance provided by Josephine Tan and for the ARC Small Grant that funded it.
I am also grateful for the comments of participants at the 2001 Real Property Teachers
Conference where a draft of this paper was first presented.
122 Federal Law Review Volume 29
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and the third session in Melbourne from 22 January 1898 to 17 March 1898. The 50
delegates were elected, except the delegates from Western Australia who were
once again appointed by the colonial parliament. There were no delegates from
Queensland or New Zealand.
There is no space here to record all the details of the Convention process.1 It is
sufficient to note that, ultimately, the draft Constitution Bill produced by the 1897–98
Convention (amended somewhat by the colonial premiers) was adopted at referenda
in each of the States and was enacted by the Imperial Parliament (again after some
mostly minor amendments). It came into effect on 1 January 1901.
The records of the debates at the Conventions ('the Debates') and the draft
Constitution Bills produced by the Conventions were published in six volumes during
the 1890s.2 They form an important record of the federation movement (at least in its
public and official manifestations) and of the Constitution it produced.
The Debates and the draft Constitution Bills also have a legal significance. The High
Court has confirmed that they may be used in a limited way,3 along with other
historical materials, in interpreting the Constitution:
Reference to the history of [constitutional provisions] may be made, not for the purpose
of substituting for the meaning of the words used the scope and effect – if such could be
established – which the founding fathers subjectively intended the [provisions] to have,
but for the purpose of identifying the contemporary meaning of language used, the
subject to which that language was directed and the nature and objectives of the
movement towards federation from which the compact of the Constitution finally
emerged.4
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1 There are many excellent accounts of the Federation movement and the Conventions,
including Helen Irving, To Constitute A Nation (paperback edition, 1999) and John Hirst, The
Sentimental Nation: The Making of the Australian Commonwealth (2000).
2 Official Record of the Proceedings and Debates of the Australasian Federation Conference, 1890
(1890) ('CD Melbourne 1890'); Official Report of the National Australasian Convention Debates.
Sydney, 2 March to 9 April, 1891 (1891) ('CD Sydney 1891'); Official Report of the National
Australasian Convention Debates. Adelaide, March 22 to May 5, 1897 (1897) ('CD Adelaide
1897'); Official Record of the Debates of the Australasian Federal Convention. Second Session.
Sydney, 2nd to 24th September, 1897 (1897) ('CD Sydney 1897'); Official Record of the Debates of
the Australasian Federal Convention. Third Session. Melbourne, 20th January to 17th March 1898
(two volumes, 1898) ('CD Melbourne 1898'). The Draft Bills are reproduced as follows: CD
Sydney 1891, 943-964 ('1891 Draft Bill'); CD 1897 Adelaide, 1221–43 ('1897 Draft Bill'); CD
Melbourne 1898, 2523–44 ('1898 Draft Bill'). The 1891–98 Debates were reprinted in a 1986
facsimile edition as Official Record of the Debates of the Australasian Federal Convention with a
sixth volume of indices and commentary. The Debates have also been scanned and made
available in searchable text form on the internet by the Senate
<http://www.aph.gov.au/senate/pubs/records.htm> and the SETIS project
<http://setis.library.usyd.edu.au/fed/>. These electronic versions of the Debates were
indispensable in carry ing out the research on which this article is based.
3 Despite earlier taking the opposite view, see James A Thomson, 'Constitutional
Interpretation: History and the High Court: A Bibliographical Survey' (1982) 5 University of
New South Wales Law Journal 309.
4 Cole v Whitfield (1988) 165 CLR 360, 385.
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